Georgia, M, 1938-1991

Cop killer executed; case led

JACKSON, Ga. (AP) — Convicted
police killer Warren McCleskey,
whose 13 years of appeals resulted in
two landmark Supreme Court deci-
sions upholding the death penalty,
died in Georgia’s electric chair early
today. ;

McCleskey was jsentenced to die
for the 1978 shooting death of Atlanta
police officer Frank Schlatt during a
furniture store robbery. He was exe-
cuted at 3:13 a.m. EDT after the U.S.
Supreme Court denied the last of his
appeals.

Two of McCleskey’s earlier
appeals led to landmark Supreme
Court decisions, including one this
year that legal experts predicted
would reduce by years the time it
takes to carry out an execution.

McCleskey, 44, spent the hours be-
fore his execution with relatives and
friends in his cell near the electric
chair at the Georgia Diagnostic and

to key death-penalt

Classification Center, 40 miles south —

of Atlanta.

A few minutes before he died, he
asked his victim’s family for forgive-
ness, asked his own family not to be
resentful and called for an end to the
death penalty.

WARREN McCLESKEY
Final appeals denied

In one landmark case, McCleskey
raised the issue that blacks who
killed whites were more likely to be
executed than whites who killed
blacks. McCleskey was black and
Schlatt was white. The Supreme

y rulings

Court used his appeal in 1987 to bar
the use of statistics attempting to
prove race discrimination.
In April, the high court ruled
against McCleskey in a decision that
limited the number of times death-

row inmates may appeal. His law-

yers had argued that Georgia author-

ities violated his rights by using a:

jail informant to elicit a confession
from him.

However, the issue had not been
raised in earlier appeals. The Su-
preme Court ruled that unless in-
mates can prove they had good rea-
son for not raising a constitutional
issue earlier, and unless their failure
to raise it harmed their ability to
defend themselves, they cannot bring
it up later. 3 he HS

McCleskey was one of four people
charged with killing Schlatt. Named
by .witnesses as the trigger man,
McCleskey was the only one of the
four given the death penalty. Two co-

defendants received life sentences,

and the fourth man was sentenced to
20 years. ae eee
African National Congress Presi-
dent Nelson Mandela was among
those who asked that he be spared.

A-11

SAN DIEGO TRIBUNE

Wednesday, September 25, 1991


ihreatened —

P

‘ bs

en's Worst Blasts cat Bumott
ey ees carta B Dies in Chair

) parently came out from under the } é

; Re oe -. * “ “ s
; : ;
‘ a STi aS. Bg ae oe gsualties, poe ~ For Yule | ;
Bale mvd  eRN See i SRE “Fie hay aor im come with the No considerable damage %
Be : , : rrow, following crops was reported, er 52. OT a 4
be tee low for to- eter pastures, grain an ° + .
er bureau re-growth suffered ig some distri road | REIDSVILLE, Ga. Dec. 17—”)
st nikht was 14, The usual flare-up of frozen water | Vester McBurnett, Floyd County
rds were made | pipes and automobile radiators | father of sft children, died silent-
the Southeast, | accompanied the cold. ly in the electric chair today tow
>. reporting aix is The loss and Rardship, however, the ‘Chriss Eve slaying of 6
temperatures did not compare with last win- .
far south as. ter’s severe cold when the thermo- | crippled storekeeper,
was 22 In At-| meter slumped to two dgreeapin|- The 43-year-old tenant fa
annan, 23 1in/ Atlanta on Nov. 25. was pronounced dead at the sta
in Miami, | Last night's low readings com-/ prison at 10:59 am. Warden ~
wo Negroes in| pared with the night before in-|P. Balkcom announted that
: puted | cluded Atlanta 22 and 12, Athens! went to his death stoically and
Miay° 25¢ 13. Macon 21 and 18, Co-/ without any statement.

imbdus 21 and 17, Augusta 17 and Six earlier death dates had
> -Aibany "26 and 22. Alma 26! been get but all were canceled by
od 2t. Savannah 28 and4 2¢ Val- ys obtained t#® a legal fight
ig Ss co wWtoday was 29 Wer csuthen's life. Pour
~~ + ‘the Pardon and Parole
’ ‘ * fused to ease the death sentence,
awrence $ News the last time only last Thursday.

| Attorneys for the slayer argued
Days lke to Run |raimas.e spocisies’ sanity.

< commission to examine him and
On GOP Ticket it reported late in October that
it Pound him of sound mind.
WASHINGTON, Dec 17- (INS) The Georgia Su Court”.
news Magaziné declared today much earlier had dec to in-
nat Gen. Eisenhower ‘has said | \érvene in the death sentence.
yes” to Republicans who want to | McBurnett shot to death
‘ace Mis name in nomination for , George Horace Wil!famon, 40, on
“é presidency and “no” to Demo- , Christmas Eve, 1948. The prose-
rats. ‘eution charged that the fata]
The magazine U8 News a'nd| shots were’ fired as Williamon, 9
World Report, edited by David | Daralytic, sat in as wheelchair st
wrence, asserted on the basis of /his store on the Cave Spring

tks with “persons who have had | Highway near the Alabama state
‘rsthand knowledge on the sub- | line.

ct" | MéBurnett lived om a farm
“Eisenhower ts rejecting a ‘sure | owned by Wriliamon’s . father,
ing’ offered by the Democrats {Cjear-defined motive for the slay.
gamble on a chance to become ing was never ed. Dew
President as a Republican.’* fense attorneys contended that in
The periodical also said that|agaition to being mentally unbal.
Pupreme Court Justice William O. anced at the time, the killer gise
pouglas was the source of a New| nad been drinking heavily, 4° +
Ort Times story Nast month say-/ srcBurnett was convicted a
ng that e” had turned down first sentenced to die at a

Tees < ar cha ¥
(Floyd): on
Mead] 19515

eho

he pemvcratic nomi fieston.
P@rportirf¥ e-réveal for the first, for n
me “the real story of Eisen- | as

years.
ower's plans and attitudes." U_ 8. |
jews insisted: The warden said McBurnett

“Ike will take a Republican! faced the vos aan of death vw
omination {f offered to him. He /¥: Sought no ~ et repentanen

a Republican . . . Eisenhower's and showed . +r aad one man,”
ame will go on the ballot as a eathnoen sain

Republican in the March 15 pri- | :

ary in New Hampshire. | __ The prison official described the
“Ike will say he ts a Republican. execution as about the quietest
Fe has assured his backers that, W¢ have ever held.” Besides the
e will not let them down if the | technicians, it was witnessed _
omination is offered him.” @ | XY the prison chaplain Fue

As to the New York Times story, Physicians. ‘
ghich Mr. Truman denied. the Maone immediately claimed the
,gkazine said:'““Truman did not body. Balkcom said that if ne
‘rectly offer Ike the nomination | one appeared by tomorrow, Moe
in Nov. 5, or before or after that,| Burnett will be buried in. the
hat story had its pélitical pur- prison cemetery.

nse”?

and intense legal fight to

Nn Offer by President Truman aE Rome in January. 1949. A long

a cg eee

DIPLOMAT DIES Rome Stores Plan
LONDON. Dec, 17 Lard Shopping Schedule

rth, 75. British’ diplomat and

st secretary -general of the/| ‘

ague of Nations. died last night! Stores in Rome will again be :
his home at Rogath. In the | open until 9 o'clock Priday night —  _
‘wue days he was Sir Eric} to permit families to shop to-
ummond Among numerous dip- | gether. ; =

atic and political posts he; The stores will observe regular

id was the ambassadorship to! hours on Saturday and Monday,

sly. from 1933 to 1939, the salad | and will be closed Tuesday, They
ve of Benito Mussolini . will be open Wednesday. :

OROTHY DIX PASSES -


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PEE s BOERS

156 Ga.

fore the deceased had even as much as
laid his hands upon the defendapt, or
by word or act made any threat against
the defendant, the defendant arose from
the cot where he was seated and began
shooting the. deceased. According to that
witness, Thomas had made no assault up-
on the defendant. At most, to arrest the
defendant without a warrant constituted
only a trespass, and such action on the
part of the deceased did not justify. the
felonious assault made upon him by the
defendant. The jury had a right to find
that the assault made upon the deceased
by the defendant in resisting the arrest
was so utterly unreasonable, and so un-
reasonably disproportionate to the provo-
cation on the part of the officer, that
malice may be implied from the circum-
stances. That the defendant had the right
to resist an illegal arrest by all means
which were reasonably necessary for the
purpose is conceded. If the officer had
used any force or show of force in at-
tempting the arrest, the defendant would
have had the right to meet force with
force. But the testimony of Ray, the
eye-witness testifying for the State, is
that the deceased, although he had a pistol
upon. his person, did not draw the pistol
or have his hands on it until defendant
fired the first shot. Thus, after submit-
ting to the illegal arrest by officer Thomas,
if defendant had any doubt as to the
authority of the officer to make the arrest,
it was his duty to request the officer to
show the warrant or to explain his ac-
tions in the absence of the warrant. This
he did not afford the officer an oppor-
tunity to do, but immediately drew his
pistol and began to shoot. Under such
circumstances the crime could be nothing
less than murder. In Norton vy. State, 137
Ga. 842(3), 74 S.E. 759, it was said [page
760]: “The mere fact of an unlawful
arrest will not-alone authorize the killing
of the officer making it.” In Howell y.

199 SOUTH EASTERN REPORTER

protect himself, although it may be neces-
sary to slay the officer for that purpose.’
(b) If the motive of one shooting and
killing another is solely to prevent an
illegal arrest, he would be guilty of man-
slaughter; but, if such an one shoots and
kills another at a time when there is no
actual or apparent necessity to do so,
either to save his own life or to prevent
a. felonious assault from being commit-
ted upon him, he would be guilty of mur-
der.”

[2-6] Headnotes 2 to 6, inclusive, state
all that need further be said concerning
the grounds of the motion. If the evi-
dence for the State was believed by the
jury, they were authorized to find the

defendant guilty of murder.
Judgment affirmed.

All the Justices concur, except RUS-
SELL, C. J., who dissents from the judg-
ment, and ATKINSON, P. J. who dis-
sents from the ruling in headnote 3.

BELL, J., concurs in the judgment.

DIXON v. STATE.
No. 27065.

Court of Appeals of Georgia, Division No. 1.
Oct. 10, 1938.

Homicide €=257(1)
Evidence that defendant was not pres-

ent at time dispossessory warrant was ac-
tually executed, that prosccutor was leav-
ing the scene when defendant arrived, and

State, 162 Ga. 14, 16, 134 S.E. 59, 60, it that defendant struck prosecutor only when

was ruled: “(a) ‘The mere fact of an
unlawful arrest will not alone authorize
the killing of an officer making it. But
if, in the progress of the transaction, the
officer is about to commit a felony upon
the other party, or so acts and makcs
such show of violence as to excite in
the person sought to be arrested the fears
of a reasonable man that a felony is about
to be committed on him, and such person
acts under the influence of those fears,
and not in a spirit of revenge, he may

and because prosecutor attempted to draw
his pistol, authorized conviction of assault
with intent to murder on ground that de-
fendant struck prosecutor in anger and with
intent to kill without justifiable cause, ‘{r-
respective of whether the dispossessory war-
rant was properly served or whether prose-
cutor was a trespasser. Code 1933, § 61-306.

Syllabus by the Oourt.
The question whether the dispossessory
warrant had been properly served on the de-

DIXON v. STATE Bs
199 8.E. Ga. 157

fendant, and therefore whether the prosecu-
tor was a trespasser in executing the same,
need not be determined in the present case
under all of the evidence-and the defendant’s
statement. There appears nowhere in the

’ evidence or in the defendant’s statement any

contention that the defendant assaulted the
prosecutor because of the execution of the
warrant, or to prevent any further trespass
upon his property. On the other hand it
appears from the defendant’s own statement
that he ‘was not present at the time the
warrant was actually executed, that he came
to the house because he had information that
the prosecutor was there drunk and curs-
ing before his wife and others, that upon
his arrival the prosecutor was out in the
road leaving the scene, that he (defendant)
asked the prosecutor “Was he a white man?”
to which the prosecutor replied “Yes,” and
that he struck the prosecutor only when and
because he attempted to draw his pistol.
The jury was authorized to find that the
defendant struck the prosecutor with a ham-
mer in anger and with intent to kill, with-
out justifiable cause. :

_— SO

Error from Superi
‘ perior Court, Jack
County; Clifford Pratt, Judge. ee

a Dixon was convicted of assault
with intent to murder, and he brings error.
Affirmed.

Geo. W. Westmoreland
seo. W, , of Jeff
plaintiff in error, aaiaiaes Ea

B. Frank Simpson,’ Sol. Gen., of Nor-

Cross, and Davi
for the State. & Stephens, of Jefferson,

GUERRY, Judge.

mn defendant was indicted for assault
ith intent to murder one J. S. Moore. It
’ppears that on the day in question, Moore
acting as a constable and by virtue of a dis-
Possessory warrant issued by another as
a Hee peace, went to the residence
pias efendant, moved his furniture and
pr oe belongings out into the yard,
east ed up the doors to the house. The
ere is taken in this court that the acts
side re in the execution of the dispos-

Ty warrant constituted a wilful tres-

pass—this for the reason (it is contended)
that the dispossessory warrant was not
served by a duly-qualified officer authorized
to perfect service, nor had it in point of
fact been served upon the defendant in the
manner contemplated by the Code, § 61-306,
and it is insisted that this being true the de-
fendant had the right to resist such forcible
and unlawful invasion of his home and prop-
erty with force. It is claimed that the de-
fendant was deprived of this defense by
the failure of the trial judge to so charge
the jury and by his allowance in evidence,
over objection, of the dispossessory war-
rant with the return of service thereon.

We do not think it necessary however to
enter into a discussion of these questions
for even admitting for the purposes of the
present case that the dispossessory warrant
had not been properly served upon the de-
fendant, and by an officer authorized to per-
fect service as contended, and therefore
that the acts of the prosecutor in moving
defendant’s personal goods from the house
constituted a trespass, yet it does not seem
that this can affect the guilt or innocence
of the defendant for the assault made.
Under all of the evidence and the defend-
ant’s statement it appears that the defend-
ant, who was not at home when Moore ex-
ecuted the warrant, “got word that he
(Moore) was up there drunk cussing before
my women folks;” that when he arrived
and before the alleged assault, the trespass
if any, was over and the prosecutor was oft
of the premises and leaving the scene; that
he asked the prosecutor “Was he a ‘white
man ?” to which the prosecutor replied
Yes;” and that he struck the prosecutor
only when and because he reached for his
pistol, no contention being made in the evi-
dence or in the defendant’s statement that
the assault was made because of the execu-
tion of the warrant, or to prevent any fur-
ther trespass upon his property. Compare
McBride v. State, Ga.Sup., 199 S.E, 153
decided September 27, 1938. The jury was
authorized to find that the defendant struck
the prosecutor in anger and with intent to
kill, without justifiable cause.

Judgment affirmed.

BROYLES, C. J., and MacINTYRE, J,
concur. ‘

[SARA

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a ER 4.

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UNIVER Si i


o (AP) Ga, 16.
Lf AP mp pen gy So
convicted of assaulting

FOUDe worman, went to his
in the electric chair at state

ef

? today, shortly after Ae

"Renae guilty.
Superintendent Roitie Law

tence said McLemore went quitt>

Seren into the -

he

“bie ho statement a the

chair, Can hour or ‘so before

od went Gére, he confessed,” the
mt said.

* Shetf? Cc. C. Layfield end Dep
uty Sheriff A. L. Poole, of
lumbus, brought McLemore

Sunday. me
The man hed twice been cual

wicted of the crime, which occur
fed near @ golf course near Coluti
Bus. His first death sentence war
eet aside by the state supreme
eourt, and he ‘was retried
again pentenced to die.
FIRST eLECTROCOTION
‘McLemore went to his death #
the electric chair at Milledgeville
at 9 o'clock Columbus ti teieyy

This was the first electrocution

from Muscogee county, a em
vided for in the Perkins —

sed by the Georgia. legis ome
1926 and which wert: into
fect in 1026. R. O. Pee ins of Cb

lumbus; state sens
the author of. tna: oO
the method ot vega dew
Georgia from the hangman's rope
% theie@lectric chair

The el@ctrocution of McLemore
Friday was also the frst @ ire
the death penalty bas been” yn
voked on ® Muscogee oo

* msoner . ;

1936

Li=

defends, have deen. sentenced
to die ard two are in jail (here
Ow under sentence of
Cuties, but in. precious tal
@fires since 1976 those sentenced
Rave Deen extended “clemency.
end given life sentences 7
Im the case of Jones and Blood -
' worth there were three thrialé and
i @ mistrial, the case Nag ring “been
brought to cast : Pa oe he
ee fost Apo
aylor. ,
e vouths re
Same murde ey

Columbus Enquirer, Columbus, Georgia, h-

en them « lift nh autor
He wes «8 ‘traveling - Ged ne
stlesman. The. motive “
murder was sages 16 been,
robbery sentence

‘ution law wer... ‘it
1, that time the old scaffoic
‘doce! jail has Been done

i p~]

Fe OA

Police killer executed |
after delay for appeals

Associated Press

JACKSON, Ga. — A police
killer whose case prompted a
Supreme Court decision  limit-
ing death-row appeals was exe-
cuted early Wednesday after a
flurry of last-minute appeals de-
layed his death by eight hours.

Warren McCleskey, 44, was
strapped into the electric chair
twice as prison officials started,
stopped and then restarted pre-
execution procedures in the con-
fusion over the appeals. When a
final appeal to the U.S. Su-
preme Court failed, he was put
to death at 3:13 a.m.

Before he died, McCleskey
asked for forgiveness from the
family of Atlanta police officer

Frank Schlatt and asked _ his
own family not to be resentful.
He also called for an end to the
death penalty. —

“I pray that one day this
country, supposedly a civilized
society, will abolish barbaric
acts such as the death penalty,”
he said. “Remember, this is not
the end for me. ... It’s the begin-’

ning I’ve hoped for, to be in the

presence of my Lord.”

McCleskey’s 13 years of ap-
peals took his case to the high.
court four times, including twice
in his last 24 hours.

McCleskey was the 15th per-

son to die in the state’s electric
chair since executions were re-
sumed in 1983.

WARREN MCCLESKEY
Asks for forgiveness

| aa

Aa OO et OT Mw

oye

a ___Thursday, September 26, 1991/Las Vegas Review-Journal/13A. ,

A atigal


eee

* Suspect in nurse kiting. |

cries at his arraignment

SALT LAKE CITY (AP) — The
man accused of killing a nurse and
holding five adults and three infants.
_ hostage in a hospital maternity ward"
sobbed at his Srraigament yester-
. day.
' Richard -L. Worthington, unsha-__

| ven and shackled hand and foot,

' broke into tears when he was led
into the courtroom. He wouldn’t take

_ his eyes off his relatives in the

crowded court and had to be turned

- eto face the judge."

.. He answered the judge’ s questions
- about whether he could afford to

‘hirea lawyer i in cracked whispers.

_Afterward, bailiffs had to nudge ~

, him toward the door leading mack to

jail. . od

Worthington, 39, father of eight;
» faces a charge of aggravated mur-.

der, a death- -penalty offense, and 12

: other felonies stemming from the

- weekend siege ata hegeewet | in subur-
, ban Sandy.

- . Third Circuit Judge Floyd Gowans

: appointed a veteran public defender

, for Worthington. An prem ty plea is
* Possible. -

wot wore wees VARY ARALes BBWe Wer) BeRe Dense ee — —

The Associated Press:
Warren McCleskey

Police killer executed
after flurry of appeals

-J ACKSON, Ga. (AP) — A killer of
a police officer whose case
prompted a Supreme Court decision
limiting death row appeals was exe-

cuted early yesterday after a flurry ©

of last-minute appeals delayed his
death by eight hours. _
- Warren McCleskey, 44, was

‘strapped into the electric chair

twice..as prison officials started,
stopped and then restarted pre-
execution procedures in confusion
over the appeals. When a final ap-
-peal.to the U.S. Supreme Court
failed, he was put to death at 3:13
aMaysie.?

Before he died, McCleskey asked

for forgiveness from the family of

Atlanta police officer Frank Schlatt.

He also called for an end to the
.death penalty.

McCleskey’s 13 years of appeals

‘\.took his case to the high court four

times — twice in his last 24 hours.

“mow Darly SHae.

TUE Sow Aa

Fre 1


|

 COWSTIDTON bute,

Wurst

Staff writer.
oe: Bg Aas 23 ioe

Making eye contact with

several people witnessing his
“* execution, Warren ‘McCleskey ~
~ said he wanted all to know be-

fore he died that he was sorry

_} for his role in the 1978 furniture

- Store robbery that led to the
‘{ slaying of Atlanta police Officer
‘tT Frank Schlatt.

“I am deeply sorry for the
lives that have been altered the

© way they have because of my ig-
‘’ norance
t’ McCleskey, 46, told the more

and __ stupidity,”
than 25 witnesses Wednesday
morning. “To my family, I pray
you will be strong. Do not hold

any bitterness toward the pa-

role board, Attorney General
Michael Bowers or law enforce-
ment agencies.”

The former Lockheed em-

: ployee used much of his five-
‘ minute speech to tell how God

had changed his life since his
religious conversion in 1984.
“This is not the end, but the be-

‘ ginning I hoped for — to be in

the presence of my Lord,” he

‘ said.

+ McCleskey put to death after hours of

' By Mark Curriden os

Prison officials _ said

-McCleskey remained calm
while attorneys fought for nine ™

hours to stop the execution,

scheduled for 7 p.m. Tuesday. |

The appeal efforts finally failed
at 2:52 a.m. Wednesday, when
the U.S. Supreme Court denied
McCleskey’s appeal.

Here are details of McCles-

key’s last hours:
_ > Tuesday,

cial holding cell next to the
electric chair. ;

> 4:30 p.m. — He is given a
complete physical exam to en-

sure he has been properly treat--..

ed, and a check of his dental
records confirms he is Warren
McCleskey.

>5 p.m. — The warden
brings McCleskey the final
meal he requested — pizza

pockets, pinto beans, corn-

bread and Kool-Aid, but he re-
fuses to eat.

> 5:30 p.m. — He is allowed
to use a phone outside his cell to
make dozens of calls to friends
and family.

> 6 p.m. — Defense attor-

4 pm —
-McCleskey is moved into a spe-

.

neys file last-minute appeals in
federal court. .

- 6:45 p.m. — McCleskey is
granted a stay from 7 to 7:30

p.m. by U.S. District Judge J.
“Owen Forrester.

> 7:20 p.m. — Judge Forres-
ter grants a second stay so he
can hear evidence in the case
and reschedules the execution
for 10 p.m.

> 9:30 p.m. — A third Stay,
to midnight, is approved by
Judge Forrester, who continues
to hear evidence.

> 11:20 p.m. — Judge For-
rester denies McCleskey’s ap-
peal but grants him a fourth
Stay, until 2 a.m., so his attor-
neys can appeal to the 11th Cir-
cuit Court of Appeals.

> Wednesday, 1:50 a.m. —
The Court of Appeals lifts the
Stay. Prison officials set the ex:
ecution for 2:15 a.m.

> 2:19 a.m. — McCleskey is
Strapped into the electric chair.
He is three minutes into his last
Statement when the warden in-
terrupts to announce another
Stay, this time by the U.S. Su-
preme Court. McCleskey is tak-

en back to his cell.

> 2:42 a.m. — The Supreme =|
Court issues another delay, this
time for 10 minutes. |

> 2:52 a.m. — The Supreme
Court denies his appeal.
. Pb 2:53 a.m. — McCleskey is
escorted back into the chamber
and strapped into the chair
again. perce cae
> 2:54 a.m. — He repeats
his final statement.

> 3:01 a.m. — The prison

chaplain gives the final prayer.

> 3:02 a.m. — The warden

reads the death warrant.
> 3:03 a.m. — Guards at-

tach electric conductors on.
McCleskey’s head and leg ‘and .

place a mask over his face.

> 3:06 a.m. — Three un-
identified state employees hit
red buttons — one of them

sending 2,000 volts through

McCleskey’s body. His hands
immediately clinch. White

smoke comes from his right leg. -

> 3:08 a.m. — The electric
chair is turned off, and McCles-
key’s body relaxes.

> 3:13 a.m. — Doctors pro--

nounce McCleskey dead.

Y 4 /20 | 199] (D3 |

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BEHIND THE SCENES WITH PEOPLE IN THE HEADLINES

i
%

By Dennis Cauchon

historic Supreme Court death penalty cases — has one las

lice officer, today gets one hour before the Georgia State

, TS Saw who fired the gun. Wright,

‘told to the jury. In 1987, the defense discovered a 21-page
Statement the informant gave Police. In it, he admitted lying
to gain McCleskey’s trust.

_ Paul Cadenhead, McCleskey’s lawyer.’

_ for not discovering the information earlier.
~’ The jurors’ change of heart “doesn’t mean anything,”
Said Bowers. “Those jurors, in the only forum that matters,
found him guilty of murder. ... There’s no question in my
_ lind that it’s a valid sentence and he’s guilty.”
= The pardons board has commuted only four of 21 death -
‘Sentences. However, in three of the last four cases, it re-
duced the sentence from death to life in prison.

_.er taken on a criminal case until becoming convinced of
« McCleskey’s innocence. “If we lose, the lesson won't be
‘learned for years: We executed the wrong man.”

Key case on capital crime
| to..remove two, important legal obstacles to executions.

“e.P In April, the court voted 6-3 to severely limit death row
» appeals. Trying to curb “abusive” appeals, the court ruled

Georgia inmate’s
last chance for life

USA TODAY |
Death Tow inmate Warren McCleskey — the loser of two

chance to save his life today.: -
' McCleskey, a black man convicted of killing a white po-

Pardons and Paroles Board to seek a reduced sentence.
__ Appearing for McCleskey will be {wo white jurors from
his trial who now say they wouldn’t have convicted him if
they’d known more about the government’s key witness: a
jailhouse informant who says McCleskey confessed to him.

Increasing the pressure, Georgia Attorney General Mi-
chael Bowers will seek to abolish the five-member board if
it votes in favor of McCleskey,
news reports say. —

If McCleskey loses, he will be
electrocuted at 7 p.m. Tuesday.

McCleskey is convicted of killing
policeman Frank Schlatt in a 1978
furniture store holdup. McCleskey
admits to the robbery, but he says
his partner, Ben Wright fired the |
.38 revolver that killed Schlatt.

No store employees or custom-

who testified against McCleskey, |
was paroled but is now serving a McCLESKEY
life sentence for other crimes,
_ The jailhouse informant was planted in a cell next to

cCleskey’s, specifically to wrest a confession — a fact not

“The jurors were led to believe the informant was a disin-
terested party with ‘nothing to gain, which was false,” says

The federal court ordered a new trial. But the Supreme

Court ruled the issue should have been raised in McCles-
key’s first appeal in 1981 and held defense lawyers at fault

“Tm no bleeding heart,” says Cadenhead, 64, who’d nev-.

The Supreme Court has used the Warren McCleskey case

These landmark decisions may result in a dramatic in-
créase in executions, beginning as early as next year:

> In 1987, the court voted 5-4 that Statistics showing
blacks were far more likely to get the death penalty than
whites did not mean the law was applied unconstitutionally.

McCleskey’s new evidence couldn’t result in a new appeal.

SMAKERS


McCLESKEY vy

. ZANT 951

Cite as 890 F.2d 342 (1 Ith Cir. 1989)

“hiscclaim on the merits.4 See Sanders v.
United States, 373 U.S. at 16-19, 83 S.Ct.
4  at'1078-79. In Kuhlmann v. Wilson, the
: ‘Supreme Court attempted to give gryaier
; _ content to the open-ended “ends of justice”
inquiry. Its statement, however, that “the
‘ends of justice’ require federal courts to
entertain such petitions only where peti-
tioner supplements his constitutional claim
with: a colorable showing of factual inno-
nee,” 477 U.S. at 454, 106 S.Ct. at 2627,
Eaiivinded only a plurality of the justices.
See’ ‘Messer v. Kemp, 831 F.2d 946, 958 n.
es 19° (ith Cir.1987) (en banc), cert. denied,
(485'U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d

2’ (1988). Thus, the circumstances under

which ends of justice would require rehear-
an ‘otherwise abusive petition remain

a AD ioaces in which ends of justice
eae: require a rehearing of a claim do not

ight to counsel. United States v.
son, 449 U.S. 361, 365, 101 S.Ct. 665,
The previous

the district court did not reach the “ends of
Anquiry as it found that McCleskey’s
did not constitute abuse of the writ.

e Messer v. Kemp, 831 F.2d at 958-59:
Cause we conclude, as a matter of law, that

€ Tecord i in this case fails to disclose an Ake

ror doctrine, the state must “prove beyond
a reasonable doubt that the error com-
plained of did not contribute to the verdict
obtained.” Chapman v. California, 386
U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d
705 (1967). See also, Satterwhite v. Texas, ©
486 U.S. 249, 108 S.Ct. 1792, 1798, 100
L.Ed.2d 284 (1988) (harmless error analysis
applied to sixth amendment violation taint-
ing evidence in sentencing phase of capital
trial); Brown v. Dugger, 831 F.2d 1547,
1554 (11th Cir.1987).

In this case, the district court held that
the error complained of could not be found
harmless because Evans’ testimony con-
cerning McCleskey’s incriminating’ state-
ments was critical to the State’s case. In
reaching this conclusion, the court ignored
the Eleventh Circuit’s previous discussion
in McCleskey, 753 F.2d at 884-85, of the
importance of the evidence introduced
through Evans’ testimony at trial. Though
that discussion occurred in the context of
McCleskey’s Giglio claim, it clearly has
bearing on the import of Evans’ testimony
in the context of McCleskey’s Massiah
claim. - It is true, as petitioner argues, that
the harmless error inquiry in the case of a
Giglio claim differs from the inquiry in the
ease of a Massiah violation, but this differ-
ence does not save McCleskey’s claim.

The crucial question in a Giglio claim is
whether the state’s failure to disclose its
promise of reward to a witness affected the
judgment of the jury as to the credibility of
that witness. See Giglio, 405 U.S. at 154,
92 S.Ct. at 766. In its previous opinion, the
Eleventh Circuit held that the judgment of
the jury that convicted McCleskey was not
affected by the lack of disclosure. Its
holding was based on two separate
grounds. First, it found that “Evans’ cred-
ibility was exposed to substantia! impeach-
ment even without the detective’s state-
ment and the inconsistent description of his
escape,” as the jury had already been made

violation, our “ends of justice” analysis need
not proceed any further. That is, we need not
address any other factors relevant to the
“ends of justice” in light of our conclusion
that no constitutional violation occurred.


352 890 FEDERAL RE

aware of Evans’ extensive list of past con-
victions. 753 F.2d at 884. Second, and
more important for our purposes, the Elev-
enth Circuit found that, in light of all the
other evidence presented to the jury, Ev-
ans’ testimony could not “ ‘in any reason-
able likelihood have affected the judgment

of the jury.’”. /d. at 885 (quoting Napue ». -

Illinots, 360 U.S. 264, 271, 79 S.Ct. 1178,
1178, 3 L.Ed.2d 1217 (1959)). This is pre-
cisely the finding that must be made in a
harmless error analysis under Massiah and
upon reexamination, we find no reason to
disturb this finding.

Evans was called by the State on opiate
tal to strengthen its proof that McCleskey
was the triggerman at the holdup. He
testified that McCleskey had admitted to
him that. he had shot the policeman and
that McCleskey had admitted to wearing
makeup to disguise himself during the rob-
bery. . He also stated that McCleskey said
he would have shot his way out even if
there had been a dozen policemen.

Turning) first. to Evans’ testimony re-
garding McCleskey’s admission that he was
the triggerman, we feel that the State has
met its burden of proving, beyond a reason-
able doubt, that this testimony did not con-
tribute to the verdict. First, as noted by
the en bane court, McCleskey’s codefend-
ant, Ben Wright, also testified that McCles-
key was the triggerman. Though Georgia
law requires corroboration of an accom-
plice’s testimony in felony cases, it is clear
that corroboration can be through circum-
stantial as well as direct evidence.
v. State, 178 Ga.App. 760, 344 S.E.2d 730,
732 (Ga.App.1986) (quoting Gunter v.
State, 248 Ga. 651, 655, 256 S.E.2d 341
(Ga.1979)).

The State presented a_ substantial
amount. of circumstantial evidence.
McCleskey himself confessed to his partic-
ipation in the robbery. The officer was
killed by the man who entered and secured
the front of the store while the other three
men were in the back. McCleskey was
identified by two of the store personnel as
the robber who came in the front door.
The officer was killed by a bullet from
a .38 caliber Rossi handgun. The State
presented evidence that McCleskey had sto-

Davis

PORTER, 2d SERIES

len a .38 caliber Rossi in a previous holdup.
The gun that McCleskey had stolen had a
white handle.
ny from an eyewitness that the robber who
ran out the front door after the robbery
was carrying a pearl-handled pistol. This
evidence not only corroborates Ben
Wright’s testimony, but is of sufficient
quantity to allow this court to find that any
additional testimony by Evans did not con-
tribute to the verdict.

Evans’ testimony regarding McCleskey’s
statement that he was wearing makeup
could also not have reasonably affected the
jury’s determination. The en. banc court
found that:

Evans’ testimony that MeCleskey had

made up his face corroborated the identi-

fication testimony of one of the eye-
“witnesses. Nevertheless, this evidence
was not crucial to the State’s case. That

McCleskey was wearing makeup helps

establish he was the robber who entered

the furniture store through the front
door. This fact had already been directly
testified to by McCleskey’s ‘accomplice
and two eyewitnesses as well as corrobo-
rated by McCleskey’s own confession.

That Evans’ testimony buttresses one of

_the eyewitnesses’ identifications is rela-
tively unimportant.

753 F.2d at 885.

Finally, petitioner asserts that Evans’
testimony as to McCleskey’s statement that
he would have. been willing to shoot twelve
policemen affected the jury’s finding as to
the presence of malice and increased its
willingness to impose a sentence of death.
Once again, we find that the en banc
court’s analysis of this issue demonstrates
that this testimony was not crucial to the
jury’s finding of malice murder. The court
wrote that:

In his closing argument, however, the

prosecutor presented to the jury three

reasons supporting a conviction for mal-
ice murder. First, he argued that the
physical evidence showed malicious in-
tent because it indicated that McCleskey
shot the police officer once in the head
and a second time in the chest as he lay
dying on the floor. Second, the prosecu-
tor asserted that McCleskey had a choice,
either to surrender or to kill the officer.
That he chose to kill indicated malice.

The State presented testimo-

Pp

Cite as
Third, the prosecutor contends
McCleskey’s statement to Evans
still would have shot his way out
had been twelve police officers
malice. This statement by Me
was not developed at length dur
-ans’ testimony and was mention
“in passing by the prosecutor in
argument.
d. at 885. In addition, the court
easonable likelihood that the jury’s
‘tion of the death penalty was affe
_ Evans’ testimony. The prosecutor
introduce Evans as a witness at t
' tencing phase of trial, nor did he
ans’ testimony to portray McClesk
hardened criminal deserving of ded
oncentrated instead on McCleske
onvictions.'®

“Because evidence other than Eva

mony presented in the case presents
lear indication of McCleskey’s g

_court finds beyond a reasonable do
‘the jury would have convicted a
tenced McCleskey as it did even

Evans’ testimony. Our determinat
any.Massiah error would be harml
ludes a finding that the ends of
would require us to entertain McC
claim on the merits.

CONCLUSION

_ The judgment of the district cour
© ing the petition for writ of habeas c
| reversed and the petition is hereb
© as an abuse of the writ.

REVERSED.

KEY NUMBER SYSTEM

°

4aHNmMs

ve
16.’.This case can easily be distinguis
~Satterwhite v. Texas, 486 U.S. 249,

1792, 100 L.Ed.2d 284 (1988), a case

ioner cites as controlling. In Satte
psychiatrist, who had interviewed the d
in violation of his sixth amendment rig
ed in a separate sentencing proceeding
defendant presented a threat to societ

continuing acts of violence. In finding
constitutional error was not harmless,

Stressed that under Texas law, a jury
4Sentence a defendant to death unless
‘that the defendant would commit act


————

ee PE ee a ee a ee Se ee ee ee ae
.

us holdup.
dlen had a
2d testimo-
obber who
ie robbery
stol. This
ates Ben

sufficient
id that any
id fot con-

cCleskey’s
g makeup
ffected the
yane court

eskey had
the identi-
f the eye-
s evidence
rase. That
<eup helps
h ‘ered
8:
2en directly
accomplice
as corrobo-
confession.
sses one of
gns is rela-

hat Evans’
tement that
hoot twelve
nding as to
creased its
re of death.
ie’ en banc
smonstrates
iicial to the
‘The court

owever, the
: jury three
jon for mal-
ed that the

nalicious 11°
t McCleskey
in the head
ast as he lay
rosecu-
} ehoice,
1 the officer:
ated malice.

PEARSON v. C.LR.
Cite as 890 F.2d 353 (11th Cir. 1989)

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 McCleskey
was not developed at length during Ev-
ans’ testimony and was mentioned only

reasonable likelihood that the jury’s imposi-
tion of the death penalty was affected by

Evans’ testimony. The prosecutor did not

troduce Evans as a witness at the sen-
cing phase of trial, nor did he use Ev-

Pots)

ans” “testimony to portray McCleskey as a

ened criminal deserving of death, but

a ay presented in the case presents such a
“clear: indication of McCleskey’s guilt, this

Ie jury would have convicted and sen-
anced McCleskey as it did even without

Evans’ testimony. Our determination that

wad

‘ ludes. a ‘fading that the ends of justice
Would require us to entertain McCleskey’s

c aim on. the merits.

the judgment of the district court grant-

mn ing t the petition for writ of habeas corpus is

ersed and the age is hereby denied

»This case can easily be distinguished from
od terwhite v. Texas, 486 U.S. 249, 108 S.Ct.
92, 100 L.Ed.2d 284 (1988), a case that peti-
Onler cites as controlling. In Satterwhite, a
a ychiatrist, who had interviewed the defendant

in a separate sentencing proceeding that the
fendant presented a threat to society through
‘Continuing acts of violence. In finding that the
ay nstitutional error was not harmless, the Court
= ed that under Texas law, a jury may not
een a defendant to death unless it finds
: at the defendant would commit acts of vio-

James C. PEARSON, Deceased, Mildred
Pearson, Personal Representative, and
Mildred Pearson, Petitioners-Appel-
lants,

Vv.

COMMISSIONER OF INTERNAL
REVENUE, Respondent-Appellee.

No. 88-3961
Non-Argument Calendar.

United States Court of Appeals,
Eleventh Circuit.

Dec. 11, 1989.

Personal representative of taxpayer’s
estate petitioned Tax Court for redetermi-
nation of IRS’ deficiency decision. The Tax
Court entered judgment in favor of IRS,
and personal representative appealed. The
Court of Appeals held that IRS does not
need to mail notice of income tax deficiency
to both spouses executing joint tax return,
when IRS seeks to collect entire deficiency
from single spouse.

Affirmed.

1. Internal Revenue <=4544

IRS does not need to mail notice of tax
deficiency to both spouses executing joint
income tax return, where IRS seeks to
collect entire deficiency from single spouse.
26 U.S.C.A. § 6212(b)(2).

2. Internal Revenue ¢=4647

Tax Court did not have power to grant
taxpayer’s estate equitable relief from no-

lence and would be a threat to society. Addi-
tionally, the Court found that the psychiatrist's
testimony stood out “both because of his qualifi-
cations as a medical doctor specializing in psy-
chiatry and because of the powerful content of
his message.” Jd. at ——, 108 S.Ct. at 1799. In
the instant case, the jury was not instructed as
to future dangerousness, and the Eleventh Cir-
cuit found, in its previous discussion of the
Giglio violation, that Evans’ testimony had al-
ready been greatly impeached by his own crimi-
nal background. 753 F.2d at 884.

McCLESKEY v. KEMP ae Soe gaa
Cite as 753 F.2d 877 (1985) ene

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 9b) 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; Bape

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.

Warren McCLESKEY,
Petitioner-Appellee,
Cross-Appellant,

v.

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-

878 753 FEDERAL REPORTER, 2d SERIES

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 insufficiént 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

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. O.C.G.A. § 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

T66T *SzZ *Adeq (UOYTNA)*eH *oeTS Usutem ‘foxy seTDOW

McCLESKEY v. KEMP 879
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-
* ae to race. U.S.C.A. Const.Amends.

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 crime 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 vic-

tim increased likelihood of death penalty by
approximately 20 percent in midrange

880 753 FEDERAL REPORTER, 2d SERIES

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.

23. Criminal Law ¢71166.11(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.

24. 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. -

25. 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 ani 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

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 4>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.

29. 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.

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

32. Criminal Law ¢-1172.2

An erroneous burden-shifting instruc-
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

* All of the Judges of the Court concur in the

judgment as to the death-oriented jury claim
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, AL-
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.

882 753 FEDERAL REPORTER, 2d SERIES

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
down on the floor. Responding to a silent
alarm, a police officer entered the store by
the front door. Two shots were fired.
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

the front door. Shortly after his arrest,
McCleskey confessed to participating in the
robbery but maintained that he was not the
triggerman. McCleskey confirmed the eye-
witness’ accounts that it was he who en-
tered through the front door. One of his
accomplices, Ben Wright, testified that
McCleskey admitted to shooting the officer.
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
handgun. McCleskey had stolen a .38 cali-
ber Rossi in a previous holdup.

PRIOR PROCEEDINGS

The jury convicted McCleskey of murder
and two counts of armed robbery. At the

penalty hearing, neither side called any wit-
nesses. The State introduced documentary
evidence of McCleskey’s three prior convic-
tions for armed robbery.

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 v.
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-
Yd 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
reveal that one of its witnesses had been
promised favorable treatment as a reward
for his testimony. The State violates due
process when it obtains a conviction
through the use of false evidence or on the

McCLESKEY v. KEMP 883
Cite as 753 F.2d 877 (1985)

basis of a witness’s testimony when that
witness 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 appegrance 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 McCles-
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. oa

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).

884 753 FEDERAL REPORTER, 2d SERIES

The prosecutor at petitioner’s trial, Rus-
sel J. Parker, stated that he was un-
aware of any understandings 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. 1178, 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.

[2,3] In this case, the detective’s prom-
ise to speak a word falls far short of the
understandings reached in Giglio and Na-
pue. As stated by this Court, “[tJhe thrust
of Giglio and its progeny has been to en-
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 is
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.

Was Any Violation Harmless?

[4] In any event, there is no “reason-
able likelihood” that the State’s failure to
disclose the detective’s cryptic statement or
Evans’ different escape scenario affected
the judgment of the jury. See Giglio, 405
U.S. at 154, 92 S.Ct. at 766. Evans’ credi-
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-
ny of past convictions. Evans admitted to
convictions for forgery, two burglaries, lar-
ceny, carrying a concealed weapon, and
theft from the United States mail. On
cross examination, McCleskey’s attorney
attempted to portray Evans as a “profes-
sional criminal’. Evans also admitted that
he was testifying to protect himself and
one of McCleskey’s codefendants. In light
of this substantial impeachment evidence,
we find it unlikely that the undisclosed
information would have affected the jury’s
assessment of Evans’ credibility. See
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,


McCLESKEY v. KEMP 885
Cite as 753 F.2d 877 (1985)

would have been insufficient under Georgia
law to convict him without the corrobora-
tion provided by Evans. In Georgia, an
accomplice’s testimony alone in felony
cases is insufficient to establish a fact.
0.C.G.A. § 24-4-8. Wright’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 and McCleskey’s
intent in shooting the police efficer. Al-
though we agree that his testqnony 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 US. at
271, 79 S.Ct. at 1178). Evans, who was
called only in rebuttal, testified that
McCleskey had told him that he knew he
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.

Evans’ testimony that McCleskey had
made up his face corroborated the identifi-
cation testimony of one of the eyewitness-
es. Nevertheless, this evidence was not
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-
mony 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,
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 v.
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

886 753 FEDERAL REPORTER, 2d SERIES

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.

_ In a comprehensive opinion, reported at
580 F.Supp. 338, the district court conclud-
ed that petitioner failed to make out a
prima facie case 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 not 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 prima facie case had been established,
the state had successfully rebutted the
showing: because: (1) the results were not
the product of good statistical methodolo-
gy, (2) other explanations for the study
results could be demonstrated, such as,
white victims were acting as proxies for
aggravated cases and that black-victim
cases, and (3) black-victim cases, being left
cases, and (3) black-victim cases being left
behind at the life sentence and voluntary

manslaughter stages, are less aggravated
and more mitigated than the white-victim
cases disposed of in similar fashion.

The district court concluded that petition-
er failed to carry his ultimate burden of
persuasion, because there is no consistent
statistically significant evidence that the
death penalty is being imposed 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 is 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.

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 is valid to prove
what it purports to prove. Sixth, we de-
cide that this particular study, assuming its
validity and that it proves what it claims to
prove, is insufficient to either require or
support a decision for petitioner.

In summary, we affirm the district court

on the ground that, assuming the validity
of the research, it would not support a

McCLESKEY v. KEMP 887
Cite as 753 F.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 appeal.

The Baldus Study

The Baldus study 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 throught 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 studies was ex-
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 triangu-
lation. The results 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 no sug-
gestion that a uniform, institutional bias
existed that adversely affected defendants

in white victim cases in all circumstances,
or a black defendant in all cases.

The object of the Baldus study in Fulton

County, where McCleskey was convicted,
was to determine whether the sentencing
pattern disparities that were observed
statewide with respect to race of the victim
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

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. He concluded that based
on the data there was only a possibility
that a racial factor existed in McCleskey’s
case.

’ Social Science Research Evidence

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- —

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

888 753 FEDERAL REPORTER, 2d SERIES

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 be-
havioral situation goes beyond the legiti-
mate uses for such research. Even when
this research is 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, Jn-
troduction: A Journey into the Future—
The Role of Empirical Evidence in Devel-
oping Labor Law, 1981 U.IIl.L.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-
tencing and Social Science: Research for
the Formulation of Federal Guidelines, 7
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-
tions: A Postscript on Social Science and

‘the Law, 64 Judicature 285, 288 (1981).

The Brandeis 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

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.” Jd.

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
US. 324, 340, 97 S.Ct. 1848, 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
even 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 reh’g and for reh’g en
banc, 729 F.2d 1293 (11th Cir.1984). See
also Eastland v. Tennessee Valley Au-
thority, 704 F.2d 613, 618 (11th Cir.1983);
Johnson v. Uncle Ben’s, Inc., 628 F.2d 419,
421 (5th_ Cir.1980), cert. denied, 459 U.S.

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

967, 103 S.Ct. 298, 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 are
the product of a racially 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 SiCt. 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.- 158, 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 information 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.II.L.Rev. at 8.

One difficulty with statistical evidence is
that it may raise more questions than it
answers. This Court reached that conclu-

sion in Wilkins v. University of Houston,
654 F.2d 388 (5th Cir. Unit A 1981), In

Wilkins this Court held that “[mlultiple-

regression analysis is a relatively sophisti-
cated means of determining the effects
that any number of different factors have
on a particular variable.” Jd. at 402-03.
This Court noted that the methodology “‘is
subject to misuse and thus 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.” Jd.
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
there is generally a need for additional
evidence. In Wade v. Mississippi Cooper-
ative Extension Serv., 528 F.2d 508 (5th
Cir.1976), the results drawn from the multi-
variate regression analysis were supported
by additional evidence. Jd. 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.” Daniels, Social Science

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-
cepts social science research for’ what the

890 753 FEDERAL REPORTER, 2d SERIES

’ social scientist should claim for it. As in

all circumstantial evidence cases, the infer-
ences to be drawn from the statistics are
for the factfinder, but the statistics are
accepted to show the circumstances.
Racial Discrimination, the Death Penal-
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 Furman v. Georgia, 408 U.S. 288, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Su-
preme Court struck down the Georgia
death penalty 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
though race discrimination in the imposi-
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

 §.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

2790-91 (Marshall, J., concurring); id. at
389-90 n. 12, 92 S.Ct. at 2803-04 n. 12
(Burger, C.J., dissenting); id. at 449, 92
S.Ct. at 2833 (Powell, J., dissenting).

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 918 (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 US. 325,
96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

Since Gregg, we have consistently held
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, 721 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
1448, 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, ——-. US. ——, 104 $.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 (1982).

Initially in Spinkellink v. Wainwright,
578 F.2d 582 (5th Cir.1978), cert. denied,
440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796
(1979), the Court rejected Eighth and Four-


McCLESKEY v. KEMP 891

Cite as 753 F.2d 877 (1985)

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.” Jd. 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. 1759, 64 L.Ed.2d 398
(1980), the Supreme Court sustained an
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
1227, 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 an 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 a state’s capital sentencing
system arbitrary and capricious under the
Kighth Amendment might differ slightly
from the level or amount of disparate racial
impact that would compel an inference of
discriminatory intent under the equal pro-
tection clause of the Fourteenth Amend-
ment, we do not need to decide whether
there could be a difference in magnitude

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. ie

[11] The district-court’s theory derives
some support from the Supreme Court’s

decision in Zant v. Stephens, 462 U.S. 862,
108 S.Ct. 2738, 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,
such as race. If that were done, the Court
said, “due process would require that the
jury’s decision to impose death be set
aside.” Jd. 462 U.S. at ——, 103 S.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.

892 753 FEDERAL REPORTER, 2d SERIES

{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.” Lassv-
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. Mathews v. Eldridge, 424
U.S. 319, 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 due process theory must present
_ evidence which establishes that in the capi-

tal sentencing process race “is a motivating
factor in 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] Due process and cruel and unusual
punishment cases do not normally focus on
the intent of the governmental actor. 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
racial discrimination in the equal protection

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 US. at
264-66, 97 S.Ct. at 562-64. This Circuit
has consistently applied these principles of
law. Adams v. Wainwright, 709 F.2d
1448, 1449 (11th Cir.1983), cert. dented, —
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
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.

Generalized Statistical Studies and the
Constitutional Standard _

[17] The question initially 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

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 is 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.

In Spinkellink v. Wainwright, 578 F.2d
582, 612 (5th Cir.1978), cert. denied, 440
U.S. 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 tRis 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 US.
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 quality of evidence which
showed a disparate impact, but the amount
of disparate impact that would be so strong
as to lead inevitably to a finding of motiva-
tion and intent, absent some other explana-
tion for 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, — US. ——, —— 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 can 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

894 753 FEDERAL REPORTER, 2d SERIES

will undoubtedly be made. Needless to
say, an evidentiary hearing would be neces-
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 v. Balkcom, 671 F.2d at 859.

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

The 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 it measures
what it purports to measure. Different
studies have different levels of validity.
The level of the validity 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
data base, the deficiencies in the models,
and the multi-collinearity existing between

the independent variables. We hold in this
case that even if 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
arguments being made in several cases
based on the Baldus study. Any decision
that the results of the Baldus study justify
habeas corpus relief would have to deal
with the district court’s findings as to the
study itself. Inasmuch as social science
research has been used by appellate courts
in decisionmaking, Muller v. Oregon, 208
U.S. 412, 419-21, 28 S.Ct. 324, 325-26, 52
L.Ed. 551 (1908), and has been tested like
other kinds of evidence at trial, see Spink-
ellink v. Wainwright, 578 F.2d 582, 612-13
(5th Cir.1978), there is a question ‘as to the
standard of review of a trial court’s finding
based on a highly complex statistical study.

[18] Findings of fact are reviewed un-
der the clearly erroneous standard which
the Supreme Court has defined as: ‘Tal
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 disparate impact re-
flects an intent to discriminate is an ulti-
mate fact which must be reviewed under
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)


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
must be reviewed: first, the finding con-
cerning the validity 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
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). We pretermit a
review of this finding concerning the validi-
ty of the study itself. The district court
went on to hold that even if the statistics
did validly reflect the Georgia system, the
ultimate fact of intent to discriminate was
not proven. We review this finding of fact
by assuming the validity of the study and
rest our holding on the decision that the
study, even if valid, not only supports the
district judge’s decision under the clearly
erroneous standard of review, but compels
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 accounts 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;
ie. all other things being equal, white
victim crimes are more likely to result in

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 within
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-
cluded that his study showed that system-
atic and substantial disparities existed in
the penalties imposed upon homicide de-
fendants in Georgia based-on race of the
homicide victim, that the disparities existed
at a less substantial rate in death sentenc-
ing based on race of defendants, and that
the factors 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
discussion, may be helpful: The Baldus
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 staternents about the
results are insufficient to make a legal
determination. An analysis must be made
as to how much disparity is actually shown
by the research.

Accepting the Baldus figures, but not the
general conclusion, as accurately reflecting

896 753 FEDERAL REPORTER, 2d SERIES

the Georgia experience, the statistics are
inadequate to entitle McCleskey 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 41-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 a statistically signifi-
cant ‘race-of-the-victim effect operating
statewide. It is more difficult, however, to
ascertain the magnitude of the effect dem-
onstrated by the Baldus study. The sim-
ple, unadjusted figures show that death
sentences were imposed in 11% of the white
victim cases potentially eligible for the
death penalty, and in 1% of the eligible
black victim cases. After controlling for
various legitimate 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 an effect 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-
age, white victim crimes were shown to be
20% more likely to result in the death pen-
alty than equally aggravated black victim
crimes.

None of the figures mentioned above is a
definitive quantification of the influence of

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.
The 6% average figure is a composite of all
cases and contains both low aggravation
cases, where the penalty is almost never
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 fina] 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. The
Baldus study revealed an essentially ration-
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 Georgia death penalty system is
an extremely complicated process in which
no single factor or group of factors deter-
mines the outcome of a given case. No
single petitioner could, on the basis of
these statistics alone, establish that he re-
ceived the death sentence because, and
only because, his victim was white. Even
in the mid-range of cases, where the race-
of-the-victim influence is said to be strong,
legitimate factors justifying the penalty

“5 "

aie McC apres KEY'y: ined a rey.

- SOT ee

’ Cite as 753 F.2d 877 (1985)

are, by the very détinitioh of ree ‘mid-
range, present in each case...

The statistics show there is‘a saisa'ie 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 out cases
according to levels of aggravation,” as
gauged by legitimate factors. The funda-
mental Eighth Amendment concern of Fur-
man, as discussed in Gregg, which states
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-
ute. 428 U.S. at 188, 96 S.Ct. at. 2932.

[20] Taking the 6% bottom line revealed
in the Baldus 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. | freeiihy
“This conclusion is supported, ‘and possi-
bly even compelled, by recent’ Supreme
Court opinions in Sullivan v: Wainwright,
US. 104 S.Ct.’ 450,78 L.Ed.2d'210
(1983) (denving stay ‘of execution to allow |
evidentiary hearing ‘on Eighth’ Amendment *
claim supported by statistics); Wainwright
v. Adams, — US. —, -104'S.Ct. 2183, 80 .
L.Ed.2d 809 (1984) (vacating stay); and
Wainwright v. Ford, —--US..—,;'104
S.Ct. 3498, 82 L.Ed.2d, 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 ‘evidencesre-

lied upon by Ford to support’ his claim of. »

discrimination was not sufficient to raise-a......
substantial ground upon which relief might.
be granted.” Jd. 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 vost
multiplier of 4.3 to 1 in Georgia. “Hts

_ It is of course possible that. the Supreme by

" Court was rejecting the methodology of the
Florida study, rather than its bottom line.

It is true that the methodology of the Bal- .
dus study is superior. The posture of the

Florida cases, however, persuades this... “i

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
petitioner’s proffer had raised a substantial
ground sufficient to warrant an evidentiary
hearing. In that context, it is reasonable .

‘to ‘suppose that the Supreme Court looked .

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 SrONna: is
much. less reasonable. |

‘Thus, assuming, that the Supreme Gourt :

cin Sullivan; Adams and. Ford: found: the
bottom line. in the Gross:and Mauro study -

vinsufficient’ to raise:a constitutional claim, —

we would be compelled to reach the same’:

“result. in ‘analyzing the: sufficiency ofthe
-eomparable bottom line-in the Baldus. atndy :
son: which McCleskey. relies. . .

‘'McCleskey’s argument’ about the height? :
‘ened influence of the race-of-the-victim. fac- -

‘itor in’ the mid-range of cases requires'a

“somewhat different analysis.: McCleskey’s’ '
“ease falls within the range ‘of cases involv-

-


898 753 FEDERAL REPORTER, 2d SERIES

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

ct high levels of aggravation.

The’ race-of-the-victim effect increases
the likelihood of the death penalty by ap-
proximately 20% 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 toa figure reflecting the percentage
disparity in a jury composition case. Such
a figure 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 can

a it only by assuming the ‘racial ef-

fect” More importantly, Baldus did not tes-"

‘tify that he found statistical significance i in

: “the 20% disparity figure for mid-range

‘cases, and he did not adequately explain
“the _Yationale of his definition of the mid-
“range of cases. His testimony leaves: this
Court unperstiaded that there is a rational-

_ Ty classified, well-defined class of cases in
which it can be demonstrated that a race-

of-the-victim effect is operating with a

ee ‘magnitude sppcguensting 20%, _
* {21] Assuming” arguendo, however,

that the 20% disparity is'an accurate fig-
ure, it is 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 ina rational manner, and-not in a-
»manner that can fairly be labeled arbitrary

or capricious. A valid system challenge

.eannot_be made only against the mid-range
' of cases, Baldus did not purport to define
. the mid-range of cases; , nor is such a defi-
~ nition possible. -It is simply not satisfac-

tory to say that the racial effect operates in

Sai

“close cases” and therefore that the death
penalty will be set aside in “close cases.”

{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
aggravation. The statistics alone are in-
sufficient to show that McCleskey’s sen-
tence was determined by the race of his
victim, or 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. the statistics, he

presents literally no evidence that might
tend to. support a conclusion that the race

of McCleskey’s victim in any way motivat-
fe} the Jnry to ipoee fe death semtencs
istialet,.

Wadi Noptinisk Ghadie Kaa'tebkd oui ashe
‘constitutional the sentencer in death sen-
tence cases must have some measure of
discretion. Gregg v. Georgia, 428 US. 153,
96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Prof:
Siti v. Florida, 428 U.S. 242, 96 S.Ct. 2960,
A9 L.Ed.2d 913 (1976).- The mandatory
death.sentence statutes were 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.
$25, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The very exercise. of discretion means
that - persons exercising . discretion - may
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

" ymenastiationnt! 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

McCLESKEY v. KEMP’ 899
Cite as 753 F.2d 877 (1985)

and directed, but still there is a measure of
discretion.

The Baldus approach, however, would
take the cases with different results on
what are contended to be duplicate facts,

~wheré 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
from ‘constitutional considerations.’ ~ 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 aggrayating and mitigating fac-
tors... 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 f the directed factors
were effective, but is of restricted use in
showing what undirected factors control
the exercise of constitutionally required
discretion. is

It was recognized when Gregg was s decid-
ed that the capital justice system would not
be perfect, but that it need not be perfect
in order to be constitutional. a 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,
is 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

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. 158, 226, 96
S.Ct. 2909, 2949, 49 L.Ed.2d 859 (1976)
(White, J., concurring). i
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 revérsed and a

"Verdict of guilty entered or‘a new trial eee

ordered, since the’ discretionary. att of
jury nullification would not be permitted. :

Finally, acts of executive clemency would —

have to be prohibited. Such a system, -of

-~ course, wWoull $e Sutaliy ales Seer ee

- tions of criminal-justice: <a 9S =i
Td. at 199 n. 50, 96 S.Ct. at 2937 ‘n..50
(opinion of Stewart, Powell,: ‘and Stevens,
pt 8 Te

Viewed broadly, it would seem that the
statistical evidence presented here, assum-
ing its validity, confirms rather than -con-
demns the system. In a state where -past
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 victim 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 in a small percentage of the caseés is
no reason to declare the entire system un-

“constitutional.

s


900 753 FEDERAL REPORTER, 2d SERIES

The district court properly rejected this
aspect of McCleskey’s claim.

- INEFFECTIVE ASSISTANCE
OF COUNSEL
McCleskey contends his trial counsel rén-
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 decidé an
ineffectiveness claim on the ‘ground of lack

of prejudice without. considering. the rea-
leness of the attorney’s performance.

“Strickland 1 v. Washington, — US, —,

a0¢. S.Ct. 2052, 80 L.Ed.2d_ 674 (1984).
=: As to the guilt phase of his'trial, McCles-

‘hey talon tat ie attorney fall -ta. (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 Offié Evans:. We have held there was

“no reasonable likelihood that the disclosure

‘of the detective’s statement to Offie Evans
‘would have affected the verdict. There is
‘then no “reasonable probability” that the
‘attorneys failure to discover this pie nea

S “affected the verdict.

[26] As to the robbery vicki. McCles-
‘key doesnot 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

ew

need not be examined because there was
obviously no prejudice. F

[27] The question is whether ee 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
émployee’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 prejudicecan be shown by

ee ee

able strategy decision.; ; uo
[28] “ McCleskey’s ii could ' have -

“reasonably” prepared to “eross-examine the

State’s ballisties expert Ayers: the ‘ex-
pert’s’ report. No i 1 interview ‘was
‘necessary. See” Washi: Ne Watkins,

655 F.2d 1846, 1358 (Sth ‘Cir.1981), cert.
denied, 456 U.S. 949, 102 S.Ct. 2021, 72

‘LEd2d 474 (1982). ° The Feport was in the

prosecutor's file which'‘the’ ‘attorney ‘re-
viewed and no ‘contention “has been made
that ‘he did not read it M4.»

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 McCles-
key and his sister about potential character

witnesses, They suggested no possibilities.

The sister refused to testify and advised
the attorney, that their mother was too sick
to 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: te
Respltn: the conflicting. »evidence -on. his

Point, ’. the Court fguthorized in its

{W.D.N.C.1984), rev

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.

Although this “finding of fact” is stated in
terms of the ultimate legal conclusion, im-
plicit in that conclusion is the historical
finding that the attorney’s testimony was
credible. See Paxton v. Jarvis, 735 F.2d
1306, 1808 (11th Cir.1984); Coz 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 1 ‘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 return in fentenee x was
disclosed at. trial. . tie.

The district court scone denied relief

-on the taietteccivenomes - a claim.

DEATH-ORIENTED JU RY

£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
rev'd, 142 F.2d ‘129 (4th
Cir.1984). “Whatever the merits of those

‘opinions, they are not controlling ey

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,

_ 891 US. 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 578; 582-83
(5th Cir. Unit B 1981), cert: denied, 459
U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d148 .
(1982); Spinkellink v. Wainwright, “578
F.2d 582, 593-94 (5th Cir: 1978), cert, de-.

nied, 440 US. 96, 99 S.Ct." 1548,” 59
‘LEd.2d'796 (1979). a

a Sez

THE: SANDSTROM IssuE aa eee

‘The’ district: court rejected pr ee

claim that the trial court’s instrictions. to :
‘the jury on the issue of intent . deprived him 3

of due process ‘by shifting from the ' -Prose- hee
-cution to the defense the burden of | proving

beyond a reasonable doubt each ‘essential
element of the crimes for which he was wa

"tried. . Such. burden-shifting is unconstitu-
tional under Sandstrom v.: . Montana, - 442° =
US. 510, 99 At 2450, 61- Leet: “89

(1979). .

McCleskey ‘pbjects to the following p por- :
tion of the -trial sae instrviction to ae
JULY: x cadi-s
One section ‘of our law dave that thes seis

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 interid the
natural and probable consequences of his
acts, but both of these pgeneeicaer- nay
be rebutted... <- pane :
In its analysis of whether this instruction ~
was unconstitutional under Sandstrom,
the district court examined two recent’ pan-

‘el - opinions’ of “this Circuit, Franklin’ ».

Francis, 720 F.2d 1206 (11th ‘Cir.1988), .
cert. granted, —U.S.—, 104 S.Ct. 2677,
81 L.Ed.2d 878 (1984), and Ticker v. Fran-
cis, 123 F.2d 1504 (11th Cir.), on pet. for
reh’g and- reh’g en bane; 723 F.2d 1518
(11th Cir. _— “Even though the jury in-


cain dao cc

DEATH GASE BIAS

ARGUED IN COURT)
(0-107 [8

Justices Are Told That Georgia
Law Discriminates When

the Victims Are Whites
MY TI1Me§

By STUART TAYLOR Jr.
Special to The New York Times _

WASHINGTON, Oct. 15 — Killers of
white victims, especially blacks who
kill whites, are sentenced to die in such
disproportionate numbers in Georgia

— -— S anal

St ALIZona Das
yacial

- = WASHINGTON (AP) — Members
«of the Supreme Court yesterday ag-
sgressivély questioned a lawyer who
‘said statistics prove a death-penalty

élaw results in racial bias.

» Capital punishment opponents ac-
"knowledge that the case may repre-
-ssent the last broad-based assault on

=the death penalty.

*

« Georgia’s use of its death-penalty
_slaw reflects “old habits and old ra-
«Cial attitudes” because killers of
:white people are much more likely
“to be sentenced to death than killers
‘of blacks, a condemned murderer’s

lawyer argued.

; “We have made a showing (of ra-
‘cial discrimination). We have a pat-
“tern,” said Jack Boger, a lawyer
“with the NAACP Legal Defense
~ Fund in New York City.

“Insufficient evidence”

* But Mary Beth Westmoreland, an
> assistant Georgia attorney general,
- contended that no statistical study
; can pinpoint racial bias as the key in
? choosing between death or life in

as to recall the explicit racial discrimi-

nation of the slavery era, a defense }

lawyer argued before the Supreme
Court today. © +

gia’s death-sentencing procéss as un-
constitutionally infected. by aciad che
crimination. ~ =" ~ atte

Mr. Boger’s argument, perhaps the
broadest attack on the death penalty
the Court has heard in the last decade,
encountered skeptical . questioning
from five of the Justices.

He said that statistical studies show
beyond dispute that “Georgia sen-
tences the killers of its white citizens to
death at a rate nearly 1] times the rate
at which it sentences killers of its white
citizens.”

But Mary Beth Westmoreland, a
Georgia assistant attorney general,

# prison for convicted killers.

“There is insufficient evidence to
draw the inference of discrimina-
tion,” she said.

“& Convicted killer Warren McCles-
= key’s hope to avoid Georgia’s elec-

ee et he &

fae

Death pena
bias, justices told

ty brings

cretion was exercised in sentencing,
Baldus found that killers of whites
were four times more likely to re-
ceive death sentences.

Noting that pre-Civil War Georgia
laws that required harsher penalties
for killers of whites clearly are un-

. constitutional “today, Boger said
Georgia prosecutors “have contin-

' ued to act as if those statutes are still
on the books.”

He said the statistical study offers
“a clear indictment of the Georgia

system.”

If McCleskey’s challenge is suc-
cessful, death penalty laws in other
states are sure to come under simi-
lar attacks. Some already have.

Could affect 1,800

The court’s decision, expected by
July, could affect hundreds of the
1,800 men and women on death rows
nationwide.

Although no comparable study
has been completed on a national
level, 60 of the 66 people — 91 per-
cent — executed in the United States
since the Supreme Court allowed
states to resume capital punishment
in 1976 were convicted of murdering
whites. ¢r: kt Ge

. | Nationwide, about 95. percent of

) hair for the 1978 murder of Geath row inmates
3 study by a University of lowa law e reM =
* professor. kas a haan ct Es
a sy, Dd Hus me, Deng Car oa
4 mined every Georgia murder. con- + ay exists “great questions about
# viction from 1973 to 1978 and found aa, Seamae™
‘-that those who killed whites were 1] (the Baldus study’s) validity.
# times more likely to receive the he said the study did not prove
2 death penalty than were those who sentencing disparities occurred in
: * killed blacks. “factually similar” cases.
i ¢ Looking at the smaller number of The justices were most aggressive
t = cases in which the greatest jury dis- in questioning Boger.

said the statistics did not prove dis-
crimination because ‘‘white-victim
cases are qualitatively different from
black-victim cases.”

Quality of Cases at Issue

She said blacks were more often
killed in “family disputes, lover dis-
putes,” bar fights and the like, whereas
whites were more often killed in rob-
beries and other situations more likely
to provoke “‘the moral outrage of the
community” and of the jury.

The Court is expected to rule by July
in the case, viewed by death penaity op-
ponents as perhaps their last chance to
Save many of the 1,800 defendants on
death row. Statistical studies in several
other states, as well as Georgia, have
showed that killers of white victims are
far more likely to be sentenced to death
than killers of whites.

Ms. Westmoreland said “statistical
analysis is not appropriate” in the con-
text of death sentencing by juries be-
cause “‘you cannot come up with two
similar cases to compare because each
case is unique.”’ She also questioned
the validity of the methods and conclu-
sions of the studies cited by Mr. Boger.

r. Boger, however, said that even
the studies of the Georg;

system
take account of dozens of aggravating
and mitigating circumstances in the
~ 2,484 individual cases studied, in com.
parable cases the odds of receiving a
déath sentence were more than four

were black.

“This is not some kind of statistical
fluke or aberration,” he said. ‘‘We have
a century-old pattern in the state of

Georgia,” going back pre-Civil War

laws that explicitly made the killing of
a black slave a lesser crime than the
killing of a white.

Justice Sandra Day O’Connor, twice
describing the case as “curious,”
pressed Mr. Boger on whether accept-
ing his argument would require the
Court to seek more executions in black-
victim cases or to “‘abolish the death
penalty” in Georgia and perhaps else-
where by ruling that its decisions u
holding the penalty since 1976 had been
wrong.

Mr. Boger, the top specialist on the
death penalty for the NAACP Legal
Defense and Educational Fund, said
the Court need not do either. But he
said Georgia must be required to re-
write its death penalty laws to insure
that juries do not use race even im-
plicitly as a sentencing factor.

Mr. Boger also encountered skepti-
cal questioning from Chief Justice Wil-
liam H. Rehnquist and Justices Byron
R. White, Lewis F. Powell Jr. and Anto-
nin Scalia. The Chief Justice suggested
that the lawyer could not win his case
unless he could prove intentional racial
discrimination by “this particular
jury.”

Justices Scalia and. O’Connor also
Suggested in questioning Ms. West-
moreland, however, that they were not

Jt greater for those whose victims
e\white than those whose Victims

totally convinced by her argument that

it would be virtually impossible to show
racial discrimination in death sentenc-
ing through any kind of statistical evi-
dence, So did Justices John Paul Ste-
vens and Thurgood Marshall.

Origin of Case in Georgia

The case started with the robbery of
an Atlanta furniture store in 1978. War-
ren McCleskey, the defendant whose
appeal the Court heard today, was con-.
victed of the robbery and of murdering
a police officer who interrupted it. He
was sentenced to death by a jury of 11
whites and one black.

Ms. Westmoreland stressed today

P- |that the evidence showed he had shot |

the police officer twice, once in the eye, |
that he and his accomplices had taken
several hostages, and that a fellow in-
mate had heard him bragging about
the killing.

Mr. McCleskey’s argument that his
sentence was tainted by racial] dis-
crimination, which was rejected by
Federal district and appellate courts,
was based primarily on a study by
Prof. David C. Baldus of the University
of Iowa of all 2,484 murder and man-
ro uae cases in Georgia from 1973 to —~-
1979,

In the 128 cases in which a death sen-
tence was imposed, Mr. Baldus found
that 22 percent of black defendants who
had killed whites were sentenced to
death, as against 3 percent of white de- |
fendants who had killed blacks, 8 per-
cent of whites who had killed whites
and 1 percent of blacks who had killed

blacks;

siatnanaitaliaedes

——————

—

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“shopping and work, and even for the

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ind against the death penalt _ fore the election four days later.
_ With mo |
reg. . €ffortto oust Cranston, major na-

in the state this week on behalf of
»* Zschau.

_ Treasury Secretary James Baker
“ .. willbmake stops Monday in Los An-
geles and San Diego.

_, Tuesday, Thursday and Friday,

The

— See SCOTT, B-2

fficials

MER EE:

Continent apart,
- amassed statistics to show that
McCleskey and Jackson would not

= | Death-row racial

at issue in
an a? a Pe

_ By Dwight Chapin lO-2o- a.

- EXAMINER SENIOR WRITER

Warren McCleskey killed a po-
lice officer in 1978 during a furni-
.ture-store robbery in Atlanta.

Earl Lloyd Jackson killed two -

elderly women during home bur-.
glaries in Long Beach in 1977.

Both McCleskey and Jackson
were convicted, sentenced to die
and are on prison death rows —.

: McCleskey in Georgia, Jackson in

California. McCleskey and Jackson
are black. Their victims were white.

In separate but similar efforts a
lawyers have

be awaiting execution if state
death-penalty laws. were not racial-

ly biased.

On Wednesday, lawyers from

atten eden ee

bias
the courts

the NAACP Legal Defense Fund,
working on behalf of McCleskey,
petitioned the U.S. Supreme Court _
to strike down the death penalty on
racial grounds.
Their appeal turns on a Study of
- every Georgia murder conviction
(almost 2,500 of them) between 1973
_and 1979. University of Iowa law
Professor David Baldus, who did
the study, found that killers of
whites were 11 times more likely to
receive the death sentence than.
killers of blacks. 7
And, after taking into account
aggravating circumstances and nu-
merous other variables, Baldus con-
cluded that Georgia killers stil}
were four times more likely to get
the death penalty if their victims
were white.
Stanford University law Profes-

— See DEATH, B-2

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quire developers either to provide _ incredibly, the Phantom Commuter’s among the youth set. Trading ses-
the “child care or contribute to a city Chicago-Oakland train rideended — gions are popular and rarer cards
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Fairness of
»  /0-12-He
death penalty

to be debated

WASHINGTON (UPI). — The |

Supreme Court steps back into the
-debate over Capital punishment
this week faced with pages of
Statistics civil rights groups hope
will prove the death penalty dis-
criminates against blacks who kill
whites.

The case, an appeal by a young

black man who murdered a white |

policeman, poses one of the re-
maining constitutional challenges
to the way the death penalty is
applied.

“Regardless of how you look at
the figures, what we're finding is
that all those accused of murder-
ing white victims are many more
times likely to receive a sentence
of death than if they killed a black
NAACP Legal Defense and

“ oe

adeno te hear argu.
ments W ~ ;

» for Georgia; which says its death |

c. Penalty is fairly applied, and in-
mate Warren McCleskey, - who
Says he was sentenced to death

:

person,” said Tanya Coke of the.

because he is black and killed a |

white.

The justices also will hear al
related case from Florida to de- |
termine if capital defendants |

have a right to present evidence

Showing race-based disparities in |
the way the death penalty is ad- |

ministered.

The two cases force the court
to return to an issue thought set-
tled in 1976 in a series of rulings
known collectively as Gregg vs.
Georgia. That decision, which
ended a four-year moratorium on
capital punishment, was intended
to set standards to eliminate
“arbitrary and Capricious” use of
the death penalty.

But a study by David Baldus of
the University of Iowa argues the

death penalty still is arbitrary. |

dant and the victim. Fe
Baldus studied Georgia murder
convictions from 1973-73 and
found that 22 percent of blacks
_ Who killed whites got the death
penalty, compared to 1 percent of
_blacks who killed blacks, 3 per-
cent of whites who killed blacks
and 8 percent of whites who kill
whites, _- Oe

depending on the race of a defen-

PSA tether

z
|

| f

A separate study by Samuel

_ Gross and Robert Mauro shows
Similar patterns in Florida, Il-
 linois, Oklahoma, North Carolina,

Mississippi, Virginia and
Arkansas.
In Mississippi, for example, 8.2

percent of blacks who murdered
_ Whites got the death penalty, com-

pared to 0.8 percent of those with

_ black victims.
. Civil rights groups hope the | |
court will conclude from those
’ Statistics that capital punishment
_is inherently unfair.

oe Coke said racial attitudes are a
factor

the. moment a pro-

alty to the»

eeie J
a ‘

fail to take into account many ||

sentencing factors, such as the
Severity of the crime or whether
there was a plea bargain.

The evidence in the McCleskey |.
case, she said, does not prove race |
discrimination, but merely that |

“those cases which are more
‘Severe are receiving stronger
“penalties while the less severe
cases are receiving lesser
penalties.”

George Smith of the con-
Servative Washington Legal
Foundation agrees with
Westmoreland. He said death
penalty opponents are turning to
Statistics because they are unable
to prove race discrimination in

“The important thing is, if Mc-
Cleskey wins, the constitutionali-
ty of the death sentence won't

depend on whether this in-

dividual’s trial and- sentencing
were fair to a tee,” Smith said. “It
Would create the precedent that
the validity of death penalties
depends upon how they’re allo-

_ Cated among races.”

2s. whether or not to; &

|
|
|


dustices question, |

study that ‘proves’

leath-penalty bias”

Art Zong flepy lic =

“Associated Press that those who killed whites were

rr

of bias
jo-b-F6 :

last major court challenge to capital punishment.
pears The case of War-
Bess ren McCleskey, a

Ni

oe

Justices pic |

: 228

Number convicted
Received death sentence: 50

black on Georgia’s
death row for mur-
dering a white At-
* lanta officer, goes
before the court this
month. If he suc-

be sentenced to
death than those
who murder blacks.

@ Race is the only
one of 230 possible
factors in sentenc-
ing that correlated
with the differing

* WASHINGTON — Members of
the, Supreme Court, hearing per-
apsothe most important capital-
uffighment case in a decade, ag-
pice! questioned Wednesday a
awyer who said statistics prove a

said Jack Boger, a lawyer with the
National Association for the Ad-
vancement of Colored People.

But Mary Beth Westmoreland,
an assistant Georgia attorney gen-
eral, contended that no statistical
study can pinpoint racial bias as the

11 times more likely to receive the
death penalty than were those who
killed blacks. .
Figures show that 60 of the 66
people, about 91 percent, executed

since the Supreme Court allowed’

sentencing disparities occurred in
“factually similar” cases.
The justices were aggressive in

_ questioning Boger.

“Don’t you have to show that this
particular jury was discriminatory?
Don’t you need evidence of discrim-

at death-row

The claim in the case of
Warren McCleskey, a black
convicted in the 1978 murder
of white Atlanta police officer
Frank Schlatt: those who kill
whites are 11 times more likely
to be sentenced to death than

those who kill blacks,

case’s data 1:

_ ceeds, Oe 5 / ‘death-penalty law results in racial states to resume -capital punish-
pe sttet peed hed pias, ment, in 1976 were convicted of - / ; |
could win reviews. . gia’s use of the death pen-. murdering whites. By Tony Mauro lo ¢ @ “Don't you have to show
At tasue: whether yteflects “old habits and old —_ Nationwide, about 95 percent of USA TODAY 6 that this particular jury dis-
Georgia’s death pen- | , racial attitudes” because killers of death-row inmates killed whites, 5 criminated against him?”
system is biased . | ~ white victims are much more likely even though blacks more often are upreme Court justices asked Chief Justice William
blacks. S to be sentenced to death than are _ the victims of murder. . si oa proof Wednesday, Rehnquist. “The institution you
Key evidence: killers of black victims, a Westmoreland said there exists gia eg one os Geor- are challenging is the jury.”
= who |> murderer’s lawyer argued. “great questions about (the Baldus Janth penalty oa y ote bad @ What if statistics showed
kill whites are 11 |* “We have made a showing (of  study’s) validity.” dants who are charged ‘with more who are “ugly or shifty-
times more likely to racial bias.) We have a pattern,” She said the study did not prove killing whites. esd Tonka Anthea cain.”

What is the remedy?”
asked Justice Sandra O’Con-
nor. “Would you have us exe- |
cute more people?”

Boger insisted the statistics
were valid to prove bias.

But Assistant Georgia Attor-

treatment of the de- |, key in choosing between death or ination by this particular prosecu-  & A court decisi ney General Mary Beth West-
fendants, say studies |1 life in prison for convicted killers. tor?” Chief Justice William Rehn-  ! Jul pe id pri on, due by next ~moreland argued that if there
offered by death |! “There is insufficient evidence to _quist asked. C USA's 1 788 d sug of the are any racial disparities, it's
- penalty opponents. . draw the inference of discrimina- Boger said the inferential evi- 1 741 of them black: 88 ames because crimes with black vic-
“You can’t have a death penalty in the South without rac- |, tion,” she said. dence pointed to those conclusions. —t of all victims were white, a or ark bapritch ap er gmon an
ism,” says Joe Ingle of the Southern Coalition on Jails and Pris-_ |. Convicted killer Warren McCles- When Justices Lewis Powell and 1 Several of the justices in | = disputes that result
ons. “In Georgia, white life is worth more than black life. key’s best hope to avoid the electric Antonin Scalia suggested that fac- \ Wednesday attacked th i te bb ee
Georgia Attorney General Michael Bowers counters: “If you chair for the 1978 murder of an tors other th Id ti 4 Satis’ white victims tend to result
accept their argument, you are saying that the 5.8 million peo- Atlanta policeman te-0 study by a for. scatinael nog ‘die he Pane ; an ee to Ll rights ore Kreqoentty from armed
1 incapable ’ . 0
pw in a eonmiutlonal fashion.” ee University of Iowa law professor. said, “This is not ‘some sort of t PRA ee ry or other major crimes.
In his study, David Baldus exam- statistical fluke or aberration (but) 4
— we ~~ ined every Georgia murder convic- a century-long tradition in Geor- b
tion from 1973 to 1978 and found. gia.” a


ek DEON RT ie sat ta ASIEN eT a ts

PERI RMON RSS GN

“See titel oa ee HES

; a

1ANe "

ie : era sie:

~~ charges against him in exchange for testimomy.

“* the death penalty is four times as likely to be imposed in’

in lifting death

‘ATLANTA (AP) — Rejecting a study characte
capital punishment opponents as the most seriot ete
challenge to Georgia’s death penalty, a federal Judge rey
that Warren McCleskey was not sentenced to die
of his or his victim’s race. at

But US. District Judge J. Owen Forrester did erturn:
McCleskey’s death sentence for the murder of an’ Atlanta:
policeman on other grounds. Forrester ruled Wednesday:
the jury should have been told that a key. prosecution.
witness had been promised favorable treat: ent.

8

neys involved in the acCoeahny pic would not com-

Tent until they have had time to analyze the lengthy,
y opinion.

© McCleskey was convicted and sentenced to death for the

978 slaying of Schlatt during a department store bur

Forrester said a detailed statistical study by University *glary. Two other men also were convicted in the slaying. A

- of Iowa College of Law Professor David C. Baldus did not” ; fourth pleaded guilty and testified for the state. ‘

* prove intentional racial discrimination in the administra- -Last year, Forrester conducted a two-week hearing of

- tion of the death penalty in Georgia. “McCleskey’s appeal, with most of the proceedings devoted

McCleskey’s appeal provided the vehicle for the first “to testimony about the Baldus study, which looked at 250

_ full-scale hearing on the results of the Baldus study, which “variables, including race, in about 1,000 murder cases if
death penalty opponents had cited as providing the most, . Georgia to try to determine why the death penalty is
serious legal challenge to the death penalty in, Gena; ne imposed in some cases and not in others.
since the law was enacted in 1973. = 4. The judge said the Baldus study demonstrated that
Baldus testified at the hearing that his study found that: 4..<.. ‘there is no statistically significant evidence ... that pros-
‘4+ ectitors are seeking the death penalty or juries or imposing
cases where the victim is white than in cases where the =: ** the death penalty because the defendant is black or the
victim in black, and if both the defendant and victim are *S" victim i is white.”

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> Cantinued from D1

| ““McCleskey is a significant
Gase nationally,” said Ms. West-
thoreland, who handles many of
Georgia’s ‘death- -penalty appeals.
‘After the hundreds, if not thou-
sands, of hours I’ve put into
McCleskey, it’s hard to believe
the litigation is about over. No
case have L put more time into.”

43 appeals in 13 years
; To date, the McCleskey case
has been appealed 18 times in
state and federal courts. Twice,
in 1987 and 1990, lawyers argued
the case before the US. Supreme
Court.
; “It’s not too often that cases
ipad to two significant decisions
by the Supreme Court,” said
Ronald Tabak of New York,
chairman of the American Bar
Association’s Death Penalty
Committee. “Mr. McCleskey’s
case affects nearly every death-
Henalty case being appealed in
gne way or another.”
' The McCleskey file began in
May 1978 when he was arrested
in the fatal shooting of Atlanta
police Officer Frank Schlatt, who
walked into a furniture store
while McCleskey and three oth-
ers were holding it up. McCles-
key admits to the robbery but
says he was not the triggerman.
During McCleskey’s trial, po-
lice planted the jailhouse infor-
mant in his cell — illegally,
courts ruled later. Days later, the
informant testified that McCles-
key had confessed to being the
triggerman — a claim McCles-
key denied. In return for his tes-
timony, the informant had
charges against him reduced — a
fact the jury was never told.
; The jury found McCleskey
guilty, sentencing him to die.
And his journey through the
world of appeals began.

‘
po

Warren McCleskey is scheduled
to die Tuesday for the 1978 shoot-
ing of an Atlanta policeman.

Statistics don’t count

During the first round of ap-
peals, McCleskey’s lawyers —
who worked for free during the
entire process — came across
David Baldus, an Iowa professor
involved in a five-year study of
Georgia homicides, including
those that ended in capital pun-
ishment. His findings intrigued
the lawyers and outraged death-
penalty opponents.

A black convicted of killing a
white in Georgia was 11 times
more likely to be executed than a
white who killed a black, the Bal-
dus study concluded. McCleskey
is black; Officer Schlatt was
white. Presenting this data, de-
fense attorneys argued that the

death penalty was being en--

forced in a discriminatory, un-
constitutional way in Georgia.
Foes of capital punishment
believed the study gave them the
ammunition they needed to elim-
inate the death penalty in Geor-
gia, and possibly nationwide..
But in a 5-4 decision, the Su-
preme Court disagreed, ruling
that even if statistics show dis-
crimination overall, racial bias is

©

ment would be acceptable:

record before the murder.

Source: Georgia case law

Other significant Georgia death-penalty cases

> Furman v. Georgia — In 1972, the Supreme Court declared the
death penalty unconstitutional and eliminated its use in most states,
ruling it was being unfairly handed out.

> Gregg v. Georgia — In 1976, the Supreme Court reinstated the
death penalty by establishing criteria under which capital punish-

> Coker v. Georgia — In 1977, the Supreme Court ruled the death
penalty is not applicable in rape cases.

> Green v. Georgia — In 1979, the Supreme Court greatly expand-
ed the evidence a death-penalty defendant can present; such as his

> Godfrey v. Georgia — In 1980, the Supreme Court instructed
Georgia judges to be more selective in deciding which murders quali-
fy for the death penalty, ruling they must be considerably more out-
rageous or vile than the average homicide.

“Mr. McCleskey’s
case affects nearly
every death-
penalty case being
appealed in one

way or another.”

Ronald Tabak
American Bar Association

“an inevitable part of our crimi-
nal justice system,” and not
enough to invalidate Georgia’s
death-penalty law.

“The court basically said that
unless we could show that the
prosecutor went after Mr.
McCleskey individually because
he is black or his victim was
white, then it doesn’t matter,”
said Jack Boger, a University of
South Carolina law professor and
one of McCleskey’s attorneys.
“So, the Supreme Court closed
off a whole area of inquiry into
the way capital punishment was
handed out — that being statisti-
cal data.

pe

“The only way to prove racial
discrimination in these cases is
for someone in the prosecutor’s
office to come forward and con-
fess,” he said.

“Direct evidence that racism
led to a prosecutor seeking the
death penalty is rarely, almost
never available,” said a Univer-
sity of Georgia law professor,
Ron Carlson. ‘Defense attorneys
have relied on statistics to show a
pattern of abuse. The elimination
of that was extremely im-
portant.”

No second chances

Within hours of losing the Su-
preme Court decision, McCles-
key’s lawyers filed a new appeal
arguing that the informant was
placed illegally in McCleskey’s
cell. Three years later, in 1990,
McCleskey’s lawyers stood be-
fore a more conservative Su-
preme Court seeking relief.

Once again, they were de-
nied. This time, the justices said
defense attorneys should have
raised the issue during the first
appeal. The high court used the
case to set new standards making

McCleskey: Supreme Court made 2 Key rulings

it much more difficult for death-

row inmates to file repeated

appeals.

“Because of McCleskey, from
now on death-row inmates will
get only one appeal in the federal
courts, unless the inmate can
show that he has new evidence
previously hidden by prosecu-
tors or new evidence that will
prove his innocence,” Mr. Boger
said.

“In Mr. McCleskey’s case,
the Supreme Court decided that
even if he did not get a fair trial,
he’s still guilty, so what’s the
harm?” he said. “In that sense,
the court showed its colors
brightly in how it wants to limit
defendant’s rights.”

Lawyers for McCleskey say

the high court’s conservative

swing over the past decade hurt
McCleskey’s chances.

“When it comes to his legal

~ arguments, Warren is a victim of

bad timing,” Bob Stroup said.
“Without any question, if the ar-
guments we made before the Su-
preme Court had been made five
or seven years earlier, we would
have won.”

But while defense attorneys
and civil libertarians bemoan the
McCleskey decisions, they are
hailed by police and prosecutors.
Georgia Attorney General Mi-

chael J. Bowers calls the latest |

ruling ‘the most. si
death-penalty ruling’
decade.

of the

“The Supreme Court basical-
ly decided that what happened in
this case — the never- ending ap-
peals — should not happen in fu-
ture cases,” Mr. Bowers said.
“The courts and the public have

had enough of the endless ap-

peals, and McCleskey is the case
in which the court decided to do
something about it.” .

rnifirant }
ehiiicant


a As

‘ Spuvictedsolely on the
‘strength of testimony

aroles will hear the final appeal of Warren
cCleskey, a man sentenced to death for

‘shooting an Atlanta policeman during an

armed robbery 13 years ago. Unless the

‘board grants him a stay or commutes his sen-
- fence, McCleskey will be executed Tuesday
‘pr shortly thereafter. There is reason to Dbe-

__ fieve this would be a miscarriage of justice.

~McCleskey was ©

i). Hed
‘froma’ man to whom “ #ay

he allegedly confessed
‘in prison. Other than
‘that, the case was “tq
purely circumstantial. Y\\
‘No weapon was ever»

‘found, and'there was _ ™

‘testimony ‘suggesting ©
‘McCleskey'’ did not

If pul :
gine pull the trig ‘Michael J. Bowers

.
| . During the trial it appeared that McCles-
‘key’s fellow prisoner had simply come for-
‘ward as a disinterested witness. In fact, he
‘was working off his own time as a police i in-
formant. It was in his interest to obtain a con-
‘fession. When this came to light, McCleskey’s
‘Jawyers - immediately anicayporated it into
their appeal.

The federal judge who twice reviewed

the case found that McCleskey’s conviction
had indeed been tainted. The state of Geor-

| pia, unwilling to accept his verdict, appealed.

| Incredibly, the Court of Appeals reinstat-
‘ed McCleskey’s sentence on the grounds that
Failure to reveal the witness’s status was a

a,

\

Consti TOT op

McCleskey case needs careful scrutiny

j
1 Today, the state Board of Pardons and

“harmless error” that had no effect on the
jury, Now two jurors have come forward with
affidavits swearing that had they known the
truth, they would never have voted for the
death penalty.

Incredibly again, the U.S. Supreme Court
upheld the sentence on the grounds that the

-. defense should have found out about the wit-

ness before it did. This, despite the fact that
the police, upon being asked, lied ‘and de-
clared that the witness had not been a planted
informant. Is a defendant supposed to as-
sume that the police are lying?

In recent days, Attorney General Michael

‘J. Bowers has publicly hinted that he will

campaign for quicker, tougher handling of
capital cases if McCleskey’s sentence is com-
muted. This implied threat to the board by
the board’s own lawyer represents uncon-
scionable political pressure.

One of Mr. Bowers’s chief concerns ap-
pears to be that the state has invested too
much time and money in such cases for death
sentences not to be carried out. Note, howev-
er, that it was the state, not the defense, that
delayed resolution of McCleskey’s case by
contesting the finding of the federal court.

Two of the members of the Board of Par-
dons and Parole are policemen who, under-
standably, will find it difficult to reconsider
the death sentence of someone convicted of
killing a police officer in the line of duty. It
can only be hoped that they are able to resist
allowing fellow-feeling for a brother to out-

weigh their judgment; of the merits of this
case. » ;
Va 4

 Lithascke, Ya

Ag- Ve

Tt OdtonaeE

‘


902 753 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-
nouncement 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’g and for reh’g en bane, 727 F.2d
1003 (11th Cir.1984); Tucker v. Francis,
723 F.2d 1504 (11th Cir.), on pet. for reh’g
and reh’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 to the 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. instruc-
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 (1988).
The fifth vote to affirm was added by
Justice Stevens, who concurred on jurisdic-
tional grounds. /d. 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, 707 F.2d 241,
246 (6th Cir.1983), affd 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. Jd. 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 deter-
mine whether they constituted harmless er-
ror. See, e.g., Mason v. Balkcom, 669 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-

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

less. First, an 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, 728 F.2d 1358 (11th Cir.1984); Spenc-
er v. Zant, 715 F.2d 1562, 1578 (11th Cir.
1983), on pet. for reh’g 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 is not
at 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, 727 F.2d 990, 999 (11th
Cir.), on pet. for reh’g 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

Be 8 ee

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. Jd. 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 becomes 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
Officer 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?

A. ‘No.

Q. Did you shoot anyone?

A. No, I didn’t.

Q. Is everything you have said the
truth?

A. Positive.

In closing argument, McCleskey’s attorney
again stressed his client’s alibi defense.
He concentrated on undermining the credi-
bility of the eyewitness identifications that

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 detérminative in a
given case.

KRAVITCH, Circuit 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-

*1 dissent on only the Giglio issue. I 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.

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

U.S. 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 .¥ a
mal understanding as well as the formal.
The point is, even if the dealings are infor-
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 undertaking that a jury was
entitled to know about.

Second, the 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.

Third, the court concludes there was no
reasonable likelihood that Evans’s testimony
affected the judgment of the jury. Code
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 corroborate 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 corrohora-
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 Gigho 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 “éonfirms rather than condemns the
system” and that it fails to support a con-
stitutional challenge. I disagree. In my
opinion, this disturbing evidence can and
does support a constitutional claim under
the Eighth Amendment. In holding other-
wise, the majority commits two critical er-
rors: it requires McCleskey to prove that
the State intended to discriminate against
him personally and it underestimates what
his evidence actually did prove. I will ad-
dress each of these concerns before, com-
menting briefly on the validity of the Bal-
dus Study and addressing the othe¥ 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? 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 McCleskey does not have
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, 245-57,
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 penalty on racial minor-
ities in concluding that the death penalty as
then administered constituted arbitrary 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, 77
L.Ed.2d 235 (1988) (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.

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
US. 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 US.
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 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.


904 753 FEDERAL REPORTER, 2d SERIES

pinpointed McCleskey as the triggerman
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 the other participants in the
robbery.

[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. Nor do we suggest
that defendant must specifically. argue that
intent did not exist in order 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
1831; Engle v. Koehler, 707 F.2d at 246.

In this case the officer entered and made
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.

CONCLUSION

The judgment of the district court in
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 I
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 facial-
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 capita] 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).

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. I 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-
ion, 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.


910 753 FEDERAL REPORTER, 2d SERIES

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-arbi by an
objective standard; the law, in short, looks
to the result rather than the actual mo-
tives.4. 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 (Sth Cir. Unit B
1981), modified, 671 F.2d 858 (Sth 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

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.5

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 (Sth Cir.1974) (prohibition
against cruel and unusual punishment “is not
limited to specific acts directed at selected indi-
viduals”).

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

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

Il. 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
a 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 vic-
tims.* It 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.

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-
mon 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 dis¢rimination 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 I, 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.


912 753 FEDERAL REPORTER, 2d SERIES

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 US.
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, Yould easi-
ly 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. 18, 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.

inherent in the selection process: ‘The
challenged application of the statute often
involves discretion or subjective criteria uti-
lized at a crucial point in the decision-mak-
ing process.”

The same concerns at work in the jury
discrimination context operate with equal
force in the death penalty context. The
prosecutor has considerable discretion and
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 “[s]ometimes 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 US. 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
his or her particular case.!2 Yet the major-

11. United States v. Texas Educational Agency,
579 F.2d 910 (Sth 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.

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.%
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
demenstrate intent and purpose.“ Its sib-
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. ——, 104 S.Ct. 562,
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 Judge 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.

916 753 FEDERAL REPORTER, 2d SERIES

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-
ticollinearity tends to dampen the racial
effect rather than enhance it.”

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,
871), 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).”4
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. The district court’s sugges-
tion, then, that the U codes be treated as
present, appears to be groundless and clearly
erroneous.

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-

cisms.2 A proper understanding of statis-
tical methods shows, however, that these
are not serious shortcomings in the Baldus
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 model
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 influ-
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 ? 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 R2 measurement represents the influ-
ence of random factors unique to each case that
could not be captured by addition of another
independent variable. As R? 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.

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 vic-
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.” But an R? of that
size is 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-
ous. 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 (Sth 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.

914 753 FEDERAL REPORTER, 2d SERIES

(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 Connecti-

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 definitign 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,

— US. —, 104 S.Ct. 3498, 82 L.Ed.2d _

911 (1984), Adams v.- Wainwright, — US.
——, 104 S.Ct. 2183, 80 L.Ed.2d 809 (1984),
and Sullivan v. Wainwright, — US.
——, 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-

than their sufficiency. In Sullivan, the
Supreme Court refused to stay the execu-
tion simply because it agreed with the deci-
sion of this Court, a decision based on the
validity of the study alone.'® Sullivan v.
Wainwright, 721 F.2d 316 (11th Cir.1983)
(citing prior cases rejecting statistical evi-
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 convinc-
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. It 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 v.
Fouche, supra; Chapman v. King, 154
F.2d 460 (5th Cir.), cert. denied, 327 U.S.
800, 66 S.Ct. 905, 90 L.Ed. 1025 (1946).
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.

Ill. 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.Ct. at 451, n. 3, 78 L-Ed.2d
at 213, n. 3.

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-
ception that distorted its factual findings.
The Court pointed out 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, —- US. —,
104 S.Ct. 1415, 79 L.Ed.2d 741 (1984).

Several of the imperfections noted by the
district court were not legally significant
because of their minimal effect. Many of
the errors in 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. The remaining errors affected little more
than one percent of the data in any of the
models. 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. It 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-
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.24_ 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 v.
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.

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-


924 753 FEDERAL REPORTER, 2d SERIES

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
eases charging racial discrimination.” *
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.'®

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. Id. 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.”).

vary with the legal context in which it is
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 in
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.17_ 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-
onstrate 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.

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.2° 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, “{iJf 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 U.S. 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 U.S. 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 li-
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. at n. 13.
23. Id. 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).

918 753 FEDERAL REPORTER, 2d SERIES

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

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.

HATCHETT, Circuit 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 v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 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.

. 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.

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 vic-
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
an 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, is the same
on the black defendant. The inability 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 real 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

922 753 FEDERAL REPORTER, 2d SERIES
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Columns A and B reflect the step pro-
gression of least aggravated to most ag-

5. The eight sub-groups were derived from the
group of cases where the death penalty was
predictably most likely based upon an analysis
of the relevant factors that resulted in the vast
majority of defendants receiving the death pen-
alty—116 out of the total 128. This group was

gravated cases. Table 43, DB, Ex. 91.5
Columns C and D compare sentencing rates

then sub-divided into the eight sub-groups in
ascending order giving consideration to more
serious aggravating factors and larger combina-
tions of them as the steps progress. Tr. pages
877-83.

McCLESKEY v. KEMP - 923
Cite as 753 F.2d 877 (1985) °

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
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

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.” ° :

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.!2 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 (Sth 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-

920 753 FEDERAL REPORTER, 2d SERIES

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-
od 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-
lished—one based on. the race of the victim
and one based on the race of the deféndant.
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-

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
cases where the facts are so mitigated the
death penalty is not even considered as a
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:

Death Sentencing Rates by Defendant/
Victim Racial Combination z

A as B O35: D
Black Defendant/ White Defendant/ Black Defendant/ White Defendant/
White Victim White Victim Black Victim Black Victim
ie: 08 01 : 03
(50/228): (58/745) (18/1438) (2/64)
ll 013
(108/973) (20/1502)

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

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.

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 by 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
showed that race had as much or more
impact than any other single factor. See
Exhibits DB 76-78, T-776-87. 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. 2738, 2747, 77
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, ie., 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 L-Ed.2d 235, 251.

4. 0.C.G.A. § 17-10-30.

926

also relevant and supports the statistical
conclusions.

“Discrimination on the basis of race, odi-
ous in all aspects, is especially pernicious in
the administration of Justice.” It is the
duty of the courts to see to it that through-
out the procedure for bringing a person to
justice, he shall enjoy “the protection which
the Constitution guarantees.’’?? In an im-
perfect society, one has to admit that it is
impossible to guarantee that the adminis-
trators of justice, both judges and jurors,
will successfully wear racial blinders in ev-
ery case.2 However, the risk of prejudice
must be minimized and where clearly
present eradicated.

Discrimination against minorities in the
criminal justice system is well document-
ed. This is not to say that progress has

26. Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct.
2993, 61 L.Ed.2d 739 (1979)...

~ 27. Rose, supra, 443 U.S. 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

753 FEDERAL REPORTER, 2d SERIES

not been made, but as the Supreme Court
in 1979 acknowledged,
we also cannot deny that, 114 years after
the close of the War between the States

and nearly 100 years after Strauder [100 -

U.S. 308, 25 L.Ed. 664] racial and other
forms of discrimination still remain a
fact of life, in the administration of jus-
tice as in our society as a whole. Per-
haps today that discrimination takes a
form more subtle than before. But it is
no less real or pernicious.”

If discrimination is especially pernicious
in the administration of justice, it is no-
where more sinister and abhorrent than
when it plays a part in the decision to
impose society’s ultimate sanction, the pen-
alty of death.*! It is also a tragic fact that
this discrimination is very much a part of
the country’s experience with the death
penalty? Again and as the majority

number of blacks were handpicked by the jury
commissioners for service.

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
US. at 364-65, 92 S.Ct. at 2790, “[iJndeed 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).

UNITED STATES v. CRUZ-~VALDEZ 927
Cite as 753 F.2d 927 (1983)

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 convic-
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.** 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.

The majority in this case does not
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.

UNITED STATES of America,
Plaintiff-Appellee,

v.

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.
MeMaster, 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).

Bree...

Challenge |

, Gon tinued from AAI

Civil Liberties Union in Georgia. °
~~-“The case challenges the very
“underpinnings of the 1976 Gregg
~vys. Georgia Supreme Court deci-
‘sion, which said that procedural
protections that had been written
“into the death-penalty statutes of
Georgia and other states protected
defendants against capricious and
“discriminatory rulings.
*.-“The McCleskey case says
“there’ s discrimination even in who
~.is-being chosen to be prosecuted in

“death-penalty cases, and that even |

- when juries are equipped with
-these standards, the result is one
: “of. discriminatory application.
-.-<"In a nutshell, the case says
© procedures can’t change basic
; -human nature,” he said.
-*Bowers, the Georgia attorney

F “general, said in a telephone inter- -|
: view that the U.S. District Court —

«found Baldus’ statistics “flawed,”
; and the 11th US. Circuit Court of
* Appeals concluded in rejecting

McCleskey’s appeal in 1985 that .

“even if the statistics are accurate,
? ® legally they cannot be said to
prove the point.”

Bowers said the case was “im-
portant to us in Georgia because if
it goes against us, we may have no
death penalty at all.”

“If this procedure for challeng-

« ing the death penalty were to be

“ upheld, obviously the case could
have implications nationwide,” he
said.

Of the 66 people executed since
1977, all but six were put to death
in. Alabama, Florida, Georgia,
Louisiana, Mississippi, North Car-
olina, South Carolina, Texas and
Virginia fl

5 tate
+ eS: Me, Ee =
Sis, oe

~vdbiVilat mosucladllVen .of ule sau-
vancement of Colored People. The
attorneys are representing
McCleskey and prepared a 59-page
brief that places his case in a
broad historical context. _

«The brief traces racial discrimi-
nation in courts to pre-Civil War
days when it says most Southern
states maintained separate “slave
codes that harshly regulated the
criminal and civil conduct of black
Persons.”

* Prosecutors in Southern states
strongly denied in interviews that

racism causes prosecutors or ju- :

riés to value a white life more
than a black life in death-penalty
cases.

' “The statutes are race-neutral,
and in my nine years of dealing

with these cases, I have found

nothing to indicate there has been
any discriminatory application of
them,” said Marvin White, an
assistant attorney general in Mis-
sissippi.

’“What they’re challenging is
the procedures the prosecutors are
using in deciding whether to seek
the death penalty,” said Mark
Dillard, a spokesman for South
Carolina Attorney General Travis
Medlock.

Legal experts declined to pre-
dict how the Supreme Court would
rule in the McCleskey case or to
estimate how many of the more
than 1,700 inmates on the nation’s
33 death rows might be affected.

However, many experts pre-
dicted the decision would turn on
the court’s reaction to Baldus’
data.

‘“Typically what the court
wants shown is the actual evi-

dence of the intent to discriminate |

against the defendant himself,”
said Hugo Bedau, a philosophy
and criminology professor at Tufts
University near Boston who ed-
ited the book Death Penalty in
America. “This case does not
argue that McCleskey was person-
ally the victim of discrimination
by the prosecutor or the jury or
the trial court or the appellate
courts.”

In their Supreme Court appeal,
McCleskey’s lawyers argue that
the Baldus statistics should speak
for themselves. The lawyers say it
is impossible to prove whether the
discrimination was intentional
and that the issue is legally
irrelevant.

If the justices adopt the 11th
Circuit’s reasoning, they will effec-
tively close the door on other
statistical challenges to criminal
laws, said Samuel Gross, a law
professor at Stanford University
and an authority on the use of
sotial-science data in litigation. .--


, 4t’s a national

Friday, October 31, 1986 C-9

Sey A
Ay fata ON ICUAND, CA

VRIQONE

death penalty

On May 13,
1978, in the course

: cer with two gun-
| Shots, one of them
|fired at close

months later, he
was convicted of

RIS

. oe, murder and. sen-
Stephen tenced to die. i
Chapman But the: Su-

- preme Court may
Spare him. Ina potentially historic case, his
lawyers argue that McCleskey is the victim
of racial discrimination that invalidates his
sentence. If the court rules in his favor, the
death penalty may disappear.
That is a desirable result, but this is the
wrong vehicle. The decision on whether to
abolish the death penalty, which is explicit-
ly sanctioned by the U.S. Constitution, be-
longs with legislatures, not the Supreme
Court. And if the court thinks Capital pun-
ishment is fundamentally at odds with the
constitutional ban on “cruel and unusual —
punishment,” it couldn’t find a worse occa-
sion to invoke that standard. :
The most striking fact about this sup-
posed episode of discrimination is that Mc-

a to convince Cleskey, who is black; doesn’t claim he was

- ##bara Mikul- selected to die because of his race. The

: style” Demo- argument is that he was selected to die
fg it just isn’t because of the race of his victifh, who was
a says the con-

om

fotvoiersare | Are the nation’s courts supposed
| gases.” ae

for Chavez, | 0 abide by racial quotas in

eina whe | meting out criminal

icad R400 NAN


Statistical challenge poesah

—-

key test for death penaity —

By THOMAS WAGNER
Associated Press

TLANTA — In what

could be the most im-

portant challenge to

capital punishment in

a decade, lawyers for
a death-row inmate will argue this
week before the U.S. Supreme
Court that people who killed
whites were sentenced to death in
Georgia far more often than the
killers of blacks.

The case, claiming unequal
application of the law, relies on a
statistical study alleging system-
atic racial bias in Georgia’s judi-
cial system.

The challenge is being watched
closely by other Southern states
with large death-row populations,
and the case has attracted the
attention of legal experts, who
wonder whether the Supreme
Court will give statistics the same
weight in a criminal case as it has
given them in some civil-discrimi-
nation cases.

“This is not just a death-penalty
case,” said David Bruck, a South
Carolina lawyer who represents
death-row inmates. “Above all, it’s
a civil-rights case.”

Georgia Attorney General Mi-
chael Bowers denies the claims in
the appeal, saying, “There has
been absolutely no extra effort to
prosecute killers of whites.”

Southern prosecutors inter-
viewed insisted their states’ capi-
tal-punishment procedures have
been made “race-neutral” since
the Supreme Court declared Geor-
gia’s former statute unconstitu-

an a

ey!

Warren McCleskey
Sentenced to die for the murder
of a white Atlanta policeman.

tional in 1972.

Attorneys for Warren McCles-
key, a black man sentenced to die
for the 1978 murder of a white
Atlanta policeman during a rob-
bery, say Georgia courts violated
his constitutional right to equal
protection of the law and sub-
jected him to cruel and unusual
punishment.

The proof, they say, is the
disparity between sentences for

those who kill whites and those .

who kill blacks in Georgia.

The case relies on a study by
David Baldus, a law professor at
the University of Iowa, who exam-
ined every Georgia murder convic-
tion from 1973 to 1978. He found
that those who killed whites were

11 times more likely to receive the
death penalty than were those
who killed blacks: *

In Georgia, the jury must weigh
aggravating and mitigating. cir-
cumstances before deciding to
sentence a convicted murderer to
death or life in prison.

So Baldus identified 230 factors,
such as the quality of evidence
and the defendant’s background,
that figure into a sentencing
decision.

He also eliminated cases in
which extreme violence or other
aggravating circumstances virtu-
ally ensured a death sentence, as
well as those with overwhelming
mitigating circumstances that en-
sured a life sentence.

Examining the remaining cases,
those in which the greatest jury
discretion was exercised, he found
that defendants were 20 percent
more likely to be sentenced to
death if the victim was white.

Baldus’ study also concluded |
that blacks convicted of kiliing —,
whites receive the death penalty ”

three times as often as whites do.
Although no comparable na-
tionwide study has been com-

pleted, 60 of the 66 people exe- -

cuted in the United States since
1977, or 91 percent, were con-
victed of murdering whites, ac-
cording to state authorities.

“This is one of the most impor- _
tant broad-based challenges to the
death penalty that the Supreme |

Court has heard,” said Robert
Remar, president of the American .

_— Challenge, AAI12.


ole

k

—_ ee

WASHINGTON (UPI) — The
decision to impose the death
penaity in Georgia is too often
based on “the color of a defen-
dant’s skin and that of his victim,”
the lawyer for a black death row

inmate told the Supreme Court

' John Boger of the NAACP
Legal Defense and Education

Fund urged the justices during an _

hour of argument to strike down
Georgia’s death penalty law

i ;

because itis racially dis-

 eriminatory.

But Mary Beth Westmoreland,

ay assistant Georgia attorney

. been “gpheld om numerous 0c-
‘casions. If anything, the evidence

in this case suggests that the
Georgia death penalty system is
working as it should work.”

| The arguments came in an ap-
peal by Warren McCleskey, con-
victed and sent to death row for
the May 1978 murder of white

Court hears
-[4 70

PR AELE it AREER

Cas vegas
Atlanta police officer Frank
Schlatt during a furniture store
robbery. .

Boger said McCleskey was the
only defendant out of 17 charged
with homicides of Fulton County

lice officers who received the
penalty from 1973-80.

a serious one,” Boger said. “But
the evidence shows it’s not the
kind of crime that gets death in
Fulton County.”

The case forces the high court
to return to an issue thought set-
tled in 1976 in a series of rulings
known collectively as Gregg V8.

death penalty race bias

‘That decision, which of the University of lowa fthat
ended a four-year moratorium on documented race-based Mis-
capital punishment, was intended parities in the application of the
to andards to eliminate death penalt
“arbitrary and capricious” use of
the death p

Boger

contin

who Killed
whites swho
it of

“<

—_ ———i on = =| ee

ie
Qo
|
tO
SD
}
Y
ON


ypical female
al season. To
ndidates from
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presents what
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ime for sacrifi-

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spaceship or a
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he list of women
from that race:
z out at rallies
-now the differ-
ite.”
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ki, front-runner
) years of over-

-ibune on Tues-
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that gives them

nglish’s official

ingual services.
irs at hospitals
aumbered. How
‘ranslators and
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the language?

ad non-English
63 now (have
ther languages
, | better off for
buckle down
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“kind of stub-
yg English? If
9 learning a
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white. His lawyers claim that due. to the
persistence of racism in Georgia, killers of
whites are 11 times more likely to get the
death penalty than killers of. blacks. ;
That is the sort of statistic that gets
attention. It is also badly misleading. Ac-:
cording to the study cited by McCleskey’s
lawyers, most of the racial disparity is
readily explainable by “legitimate rea- _.
sons.” Blacks are more likely. to be killed in
family disputes and barroom brawls, while
whites are more prone to die in robberies.
The latter cases, for reasons having nothing
to do with race, tend to be treated more
severely. -
The study found that for crimes roughly
comparable to McCleskey’s. the likelihood
of a death sentence is just 20 percent
greater when the victim is white than when
the victim is black. Even this figure, how-
ever, is derived after excluding the most
serious and the least serious crimes —
those in which death sentences are most
likely and least likely. The statistic refers
only to those cases in between. te
Worse, the study did not — could not —
measure a host of intangible elements that
might explain the disparity, from the credi-
bility of witnesses to the quality of police.
work.
No one doubts that some residue of rac-
ism may subtly tilt the weight of Georgia's
laws, though the evidence in this case is less
than compelling. But there are a variety of

‘procedural safeguards that keep such illegi-

timate factors to a minimum. The point of
the criminal justice system is justice, not
perfection. os
If these statistics are adequate to strike
down Georgia’s death penalty, then no
criminal law is safe. Blacks are greatly
overrepresented in the nation’s prisons.
This is not because the laws are drawn with
an eye to penalizing blacks, but because
blacks as a group are more prone to crime
than whites. In the reasoning used by Mc-
Cleskey’s lawyers, however, the intent of
the laws is irrelevant.
Does this mean that some black crimi-
nals are entitled to go free to compensate
for this “disparate impact?” Are the na-
tion’s courts supposed to abide by racial .

- quotas in meting out criminal punishment

— quotas reflecting not merely the race of
the criminals but that of their victims? ©:
Of course the argument that killers of |
whites get rougher treatment than killers of
blacks offers a simple remedy: Execute
more of the latter. That would be an odd
sort of affirmative action plan, which
would force the states to execute more.
blacks, who after all commit most of the.
murders of blacks. Black inmates on Death,
Row might just as soon do without the fa- -
vor. a, ee
Of course McCleskey would prefer the
remedy of sparing his life. But the Supreme
Court can’t go along with his preference
without erecting unreasonable obstacles to
those states that wish to maintain the death

» tha


oresents what
candidate who
ime for sacrifi-

‘ro in 1984, she
spaceship or a
’ took it for us.”
he list of women
from that race:
Z out at rallies
-now the differ-
ite.”
andidate, heads
1 brick house in
next door to a
>» street from a
ki, front-runner
} years of over-

“ibune on Tues-

ough

matter of time
that gives them
nglish’s official

ingual services.
rs at hospitals
aumbered. How
‘ranslators and
; them with the

the language?

2d non-English
63 now (have
ther languages
« > better off for
_.. buckle down
®ve any choice

‘kind of stub-
g English? If
0 learning a
course, I’ve
I’ve never
s to Proposi-
y that, but I
visiting a

mm: yours, too.

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». They’re an
t a bunch of

nything but
2», I get con-
*. 2 2 9se strange
‘ifornian in
~rewenency Sure Of it.
‘ednesdays

) Wednesday -

whites are il times more likely to get the
death penalty than killers of blacks.

That is the sort of statistic that gets
attention. It is also badly misleading. Ac-:
cording to the study cited by McCleskey’s
lawyers, most of the racial disparity is
readily explainable by “legitimate rea-_
sons.” Blacks are more likely. to be killed in
family disputes and barroom brawls, while
whites are more prone to die in robberies.
The latter cases, for reasons having nothing
to do with race, tend to be treated more
severely. =

_ The study found that for crimes roughly
comparable to McCleskey’s, the likelihood
of a death sentence is just 20 percent
greater when the victim is white than when
the victim is black. Even this figure, how-
ever, is derived after excluding the most
serious and the least serious crimes —
those in which death sentences are most
likely and least likely. The statistic rotors
only to those cases in between.

Worse, the study did not — could not —
measure a host of intangible elements that
might explain the disparity, from the credi-
bility of witnesses to the quality of police.
work.

No one doubts that some residue of rac-
ism may subtly tilt the weight of Georgia’s
laws, though the evidence in this case is less
than compelling. But there are a variety of
‘procedural safeguards that keep such illegi-
timate factors to a minimum. The point of
the criminal justice system is justice, not
perfection. a

If these statistics are adequate to strike
down Georgia’s death penalty, then no
criminal law is safe.. Blacks are greatly
overrepresented in the nation’s prisons.
This is not because the laws are drawn with
an eye to penalizing blacks, but because
blacks as a group are more prone to crime
than whites. In the reasoning used by Mc-
Cleskey’s lawyers, however, the intent of.
the laws is irrelevant.

Does this mean that some black crimi-.
nals are entitled to go free to compensate
for this “disparate impact?” Are the na-
tion’s courts supposed to abide by racial .

- quotas in meting out criminal punishment

— quotas reflecting not merely the race of
the criminals but that of their victims?

. Of course the argument that killers of
whites get rougher treatment than killers of
blacks offers a simple remedy: Execute
more of the latter. That would be an odd
sort of affirmative action plan, which
would force the states to execute more
blacks, who after all commit most of the.
murders of blacks. Black inmates on Death
Row might just as soon do without the fa- 3
vor.

Of course McCleskey would prefer the
remedy of sparing his life. But the Supreme
Court can’t go along with his preference
without erecting unreasonable obstacles to
those states that wish to maintain the death _
penalty, not to mention undermining the >
whole criminal justice system. eee in t.
the Constitution mandates that result.’

Stephen Chapman appears in the
Tribune on Sundays, Wednesdays and Fri-
days.


sais:

7 3
' 9 Nahe

“ape NEWYORK TIMBS, FRIDAY, OCTOBER 17, 1986

- Killers of W

By refusing to strike down capital punishment
eens SP eng 2
rity opens itself to some CRIT Mis:
the death Foremost

> i

hites, Killers of Blacks

iS

‘many states, the decision to execute is eciectte gia men who have been executed — six in ge rt
A Be eta Burd tS Geo onvicted mur ’ damning and
white oe black, is between + and 11 times more. The, Pde doesn't help the state, Thus is |
Ww : ‘ : e S i
to be sent th if the victim Is wil it should now be up to the death pen
? likely to be sentenced to ge le convicted reasonable that its : ton. In-1
"than if the victim is ae cing ges greater alty’s advocates to offer a TT ee could 30 “a J
i Bacar Mice of Dettl condemned to death. As__ stead, Chief a aa ae hes ani a unbenat Piles. * ’
chanee than eet of the NAACP Legal Defense the abolitionists mn ner challenging a death sen-| pri
a a te ne the other day, it is as though By his ve Secaiionty by proving that his particu: | un
un sae i - tence mi Oe bo ‘ se
Georgia still obeyed ee —— 4 lar jury was motivated by racial bias. The existence a .

of those old discriminatory state laws was once

for the law of a sore proof enough of bigotry. But just try getting a big- ;

still laboring to cleanse itself of racism. How can

tem so suspect? One

usual. Another, evident in
versionary argument over whether

somewhere in between.
Georgia argues

often victims, of outrageous
argued Assistant Attorney

sng.

way would be simply to ignow
i i e on co
iscrimination. Another would be to impos
aed prisoners such a high burden of proof that

i i das

i es fail and executions can proceed’ a:
Nt ane the Court this week, is di-
the discrimina-

tory death penalty odds are 11 to 1 or only 4 to 1 or

the crime, not the victim's
: sas ie
s its death decisions. Whites are mor
often victim: murders than blacks,
General Mary Beth

penalty.

—

j to admit his prejudice today.

tee ne Subreme Court has the raw power to an
nounce impossible legal standards of proof. > as
the discretionary authority to focus on the little es :
ture. But failing to assign a proper burden to “i
state won’t change the ugly big picture. ap agalen
the prisoner to prove specific racism would ‘) pad
ing to purge the racism now inherent in the de :
The states may be ee case a nonra

i o carry. it out, in whic
peg i i stop executions until they do. be
that’s too hard, the racist burden on capital punis

ment is too heavy to bear.

case a better

Death penalty racially biased, high court told

in a2 Pl AP ath

New justice issues first written opinion

WASHINGTON (AP) — Mem-
bers of the eee Court, hear-
ing perhaps the most important
capital punishment case in a dec-
ade, aggressively questioned on
Wednesday a lawyer who said sta-
tistics prove a death penalty law
results in racial bias.

Georgia’s use of its death pen-
alty law reflects ‘‘old habits and
old racial attitudes’’ because kill-
ers of white victims are much
more likely to be sentenced to
death than killers of black vic-
tims, a condemned murderer’s
lawyer argued.

‘‘We have made a showing (of
racial discrimination). We have a
pattern,” said Jack Boger, a law-
at with the NAACP Legal

fense Fund in New York City.

But Mary Beth Westmoreland,
an assistant Georgia attorney gen-
eral, contended that no statistical
study can pinpoint racial bias as
the key in Chowan between death
or life in prison for convicted kill-
“— ) essen ta reams

“There is insufficient evidence
to draw the inference of discrimi-
nation,’’ she said.

Convicted killer Warren
McCleskey’s best hope to avoid
Georgia’s electric chair for the
1978 murder of an Atlanta police-
man is a statistical s by a Uni-
versity of Iowa law professor.

WASHINGTON (AP) — Antonin
Scalia issued his first written
opinion Wednesday as a Supreme

ourt justice, denying an emer-
gency request by Kentucky offi-
cials in the case of an accused
child molester.

State officials asked Scalia to
suspend a Kentucky Supreme
Court ruling that threw out Sergio
Stincer’s child-molestation convic-
tion until the full U:S. Supreme
Court reviews the lower-court
decision.

The Kentucky Supreme Court
said Stincer’s rights were violate i
because he was not allowed to be
present. at a hearing to determine

the competency to testify of two
girls, ages 8 and 7, who said they
were molested.

Stincer had been sentenced to 20
years in prison.

Scalia said, “I doubt the conclu-
sion of the Kentucky Supreme
Court that (the Constitution) gives
an accused child molester the
right to be present’’ at such a
hearing.

But Scalia refused to suspend
the state court ruling because, he
said, Kentucky has since enacted
a new law allowing young victims
of sexual abuse to testify without
the accused being present at a
competency hearing.

In his study, David Baldus exa-
mined every Georgia murder con-
viction from 1973 to 1978 and found

~ that those who killed whites were
11 times more likely to receive the ~

death penal than were those who
killed blacks.
Looking at the smaller number

of cases in which the greatest jury _

discretion was exercised in sen-
tencing, Baldus found that killers
of whites were four times more
likely to receive death sentences.

Noting that pre-Civil War Geor-
gia laws that required harsher
penalties for killers of whites
clearly are unconstitutional today,
Boger said Georgia prosecutors
“have continued to act as if those
Statutes are still on the books.”

If McCleskey’s challenge is suc-
cessful, death penalty laws in
other states are sure to come
under similar attacks. Some
already have.


gl NEC 3 5¢5M, Ware

4 t
%
i

’

ij410 . z THE NEW YORK TIMES NATIONAL THURSDAY, SEPTEMBER

Georgia Inmate Is Executed

After ‘Chaotic ’ Legal Move

By PETER APPLEBOME
Special to The New York Times

ATLANTA, Sept. 25 — Warren| seemingly endless litigation a land:
McCleskey, whose . two unsuccessful | mark Supreme Court ruling on his sec:

d ‘appeals to the United States Supreme | ond appeal was intended to stop. ;
‘ Court helped define death penalty law, On Tuesday morning the five-mem!
was executed this morning after an all-

é ber Georgia Board of Pardons and
' night spasm of legal proceedings that | Paroles turned down Mr. McCleskey’s
’ played out like a caricature of the

clemency petition, apparently closing
issues his case came to symbolize. off the last obstacle to an execution. In
Mr. McCleskey, a black, 44-year old | Georgia, only the board has the author:
factory worker who was convicted of | ity to commute a death sentence. Th
killing a white police officer here dur-| board acted despite statements from
ing an attempted robbery in 1978, was | two jurors that information improperly
electrocuted at the state prison in Jack-| withheld at the trial tainted their sen-
son, Ga., after a series of stays issued | tence, and that they no longer support:

was

TEES WARES

_ key's final appea

by a Federal judge was finally lifted.
But when:he died, after declining a
last meal and after being strapped into
the chair at one point and then un-
strapped three minutes later, his exe-
cution added a final unsettling chapter
to his odyssey through the courts. _
In a final legal scramble, the Su-
preme Court twice refused a stay —
once at about 10 P.M. on Tuesday, after
a state court denied last-minute ap-
peals, and then just before 3 A.M. to-
day, after a similar appeal was reject-

A caricature of
the issues that his
case came to
symbolize.

ed by Federal courts. The Court’s 6-to-3
decisions came after the Justices were
polled by telephone.

Five minutes later, after Mr.
McCleskey had been strapped into the
electric ‘chair, electrodes attached to
his skull and a final prayer read, prison
officials were told the Supreme Court
had rejected a final stay. A minute
later the execution began, and he was
pronounced dead at 3:13.

A spokesman for the Georgia De-
partment of Pardons and Paroles de-
scribed the process, which began with
the parole board’s denial of a clemency
petition on Tuesday, as “‘chaotic.’’

Justice Thurgood Marshall of the
Supreme Court, who was one of three

dissenters in the Court’s decision not to’

halt the execution, was considerably
more stinging in his dissent.

Justice Marshall, who will retire
when his successor is confirmed by the
Senate, wrote: ‘‘In refusing to grant a
me to review fully McCleskey’s
claims, the Court values expediency
over human life. Repeatedly denying
Warren McCleskey his constitutional

ghts is unacceptable. Executing him

i

js inexcusable.”

But state-officials said: Mr. McCles-
is were, typical
Py a i es e

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se

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5, PERE PRE

ed an execution.

Mr. McCleskey’s execution was ini?
tially scheduled for 7 P.M. Tuesday, |

shortly before that Federal Distric

Judge J. Owen Forrester agreed ta

stay the execution, first until 7:30, thet
until 10 and then until midnight, to hea
a last-minute appeal filed in three dif.
ferent courts. 7
Judge Forrester denied the appe
after a hearing ended around 11:
P.M., but he stayed the execution unti
2 o’clock this morning to allow lawyer:
to appeal it. At 2:17 A.M. Mr. McCle
key was into the electric chair, only t
be taken away three minutes late;
when officials learned the High Cour
was still pondering a stay.

He was placed back in the chair at

2:53 A.M. under the assumption that n

news from the Court meant the execu;
tion was still on. Word that the Court
had denied a stay came just as thé
execution was ready to begin at 3:04. 7

Two Landmark Rulings

Mr..McCleskey, who filed repeat
appeals over the 13 years between his
conviction and his death and has had 4
long succession of lawyers, produce
two landmark rulings in death penal
law.

In 1987, in the last major challenge t
the constitutionality of the death pe!
alty, the Supreme Court voted, 5 to
that the death penalty was legal de
spite statistics showing that those whi
kill white people are far more frequent
ly sentenced to die than are those wh
kill blacks. ean!

Last April the Court voted, 6 to 3, tha
Mr. McCleskey’s claim that his sen
tence was tainted by information wit
held from the jury should be rejecte
because he failed to make the claim 0
his first habeas corpus petition. In d
ing so, the Court spelled out strict nev
guidelines that sharply curtailed thi
ability of death row inmates and othe
state prisoners to pursue multiple Fe
eral court appeals. ’ ‘

Mr. McCleskey admitted to bein
one of four men involved in a robbe
in. which Officer Frank Schlatt wa
killed, but he denied being the one wh
shot him. None of the other men r
ceived the death sentence.

. Before the execution he apologized
Officer Schiatt s family for taking p.
Bhatt hae Pe be

T
a ts
at, ag

y

Warren McCleskey during an interview last week at prison in Georgia..

>

in the attempted robberry, asked his
own family not to be bitter about his
death, professed his religious beliefs
and decried the use of the death pen-
alty. He neither confessed to being the
gunman nor did he say he was innocent
of the killing.

“| pray that one day this country,
supposedly a civilized society, will
abolish barbaric acts such as the death
penalty,” he said.

, 13 Years too Say Goodbye’ .

Officer Schlatt’s daughter said the
execution renewed her faith in the jus-
tice system. : ce:

“I feel for his family, but he’s had 13
years to say goodbye to his family and
to make peace with God,” said Jodie
Schlatt Swanner.

But Mr. McCleskey’s supporters,
who held demonstrations here and in
Washington, said Mr. McCleskey’s
case from beginning to.end was a po-
tent argument against the death pen-
alty as it is used in the United States.

“Ten. years ago the idea that we
would execute someone in violation of
the Constitution was so abhorrent no
one could imagine it happening,” said
Stephen Bright, director of the South-
ern Center for Human Rights in Atlan-
ta, which does legal work for the poor.
“Now, as a result of the Rehnquist
Court, what''we’re seeing and what
we're going'to see in case after case is
people going to the execution chamber
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in cases in which the jury did not know
fundamental things about the case.”
The case against Mr. McCleskey was
largely circumstantial. Testimony
came from one of the other robbers,
who named Mr. McCleskey as the gun-
man, and from another prisoner, Offie

Evans who told jurors Mr. McCleskey

had confessed to him in jail.
Ties to the Police

Jurors were not told that Mr. Evans
was a police informer who was led to
believe that his sentence would be
shortened if he produced incriminating
evidence against Mr. McCleskey. His
lawyers learned of Mr. Evans’s ties to
the police after the trial through docu-
ments obtained under the Freedom of
Information Act.

Clive Stafford-Smith, one of Mr.
McCleskey’s lawyers, said the Court’s
failure to consider his final appeal and
the frantic, last-minute legal maneu-
vering was a legacy of the Court’s
decision in April.


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Police killer’s
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In Jackson, Ga., a federal
judge delayed the scheduled ex-
ecution Tuesday evening of po-
lice killer Warren McCleskey,
pie aed who dodged

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to two land-—
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rulings. Judge |.
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McCleskey rester delayed 3

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until at least midnight while he |>
heard arguments that a state |
parole ‘official prejudged
McCleskey’s clemency plea.

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The Associated Press |

JACKSON, Ga. — A federal
judge late yesterday refused to

- Stop the execution of police Kill-

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dodged the death penalty. for 13
years with appeals that led to

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By LAURA MANSNERUS

Since last April, when the Supreme
Court rejected Warren McCleskey’s
argument that the administration of
the death penalty was unconstitu-
tional because of its racially dispa-
rate effects, the nation’s 2,000 death
row inmates have had to draw their
hopes and their appeals more nar-
rowly. One who has won a measure of

success, although not on any ground.

related to race, is Warren McCleskey
himself.

He was sentenced to death for kill-
ing an Atlanta police officer in a 1978
robbery. In McCleskey v. Kemp, re-
garded as the most important capiial
punishment case ina decade, he chal-
lenged Georgia’s death sentencing on
the basis of an extensive Statistical
Study showing that killers of whites

x Zz

were far more likely than killers of
blacks to receive the death penalty.
He lost in the Supreme Court, 5 to 4,
But in July, a week before his
scneduled execution, Mr, McCleskey
filed a new petition raising other con-
stitutional contentions, and in Decem-
ber Judge J. Owen Forrester of Fed-

eral District Court in Atlanta ordered
a new trial. :

On the basis of new evidence devel-

oped by Mr. McCleskey’s lawyer, the
judge found that Mr. McCleskey’s
constitutiqnal right to counsel was
violated when investigators used an
inmate acting as an informer to elicit
incriminating statements from Mr.
McCleskey. The judge said the result-
ing testimony identifying Mr.
McCleskey as the one among four
robbers who pulled the trigger should
not have been used at trial.

One Winning Appeal From Death Row / a

Mr. McCleskey’s chance for a re-
trial now depends on the Federal ap-
peals court in Atlanta. The State,
which plans to appeal, contends that
there was no constitutional violation
and that the new evidence should
have been discovered earlier’ and
should not now be considered.

Mr. McCleskey’s lawyer, John
Charles Boger of the NAACP Legal
Defense and Educational Fund Inc.,
said the jury that convicted his client
had been persuaded by the testimony
that Judge Forrester’s decision
would exclude. “My belief is if this
case is affirmed on appeal, the state
will be ina position where tthe only
reasonable response is to accept a
plea to a life sentence,’ he said. Mr.
McCleskey is also serving a life term
for robbery.

THE NEW YORK TIMES THE LAW FRIDAY, FEBRUARY 12, 1988


MeCLESKEY, Warren, elec, Ga.(Fulton) Sept. 25, 1991

aoa meen ae

L961 ‘6% TINdV ‘AVGSYNAL YWMYOA MAN

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(COURT, 5-4, REJECTS
|RACIAL CHALLENGE —
TO DEATH PENALTY

|FOES’ HOPES DASHED

Justices Are Not Swayed ; :

by Study Citing Role™.
of Victims’ Color

By STUART TAYLOR Jr.
Special to The New York Times

WASHINGTON, April 22 — The Su-

preme Court, dashing the hopes of ‘op- -

ponents of the death penalty, ruled 5 to
4 today that a state’s capital punish-
ment system was constitutional de-

spite the fact that killers of white peo- |

ple are far more frequently sentenced
to die than killers of blacks. — a

The Court upheld Georgia’s death

penalty system against a challenge by .

a black man convicted of killing a white
policeman in a 1978 robbery. The con-
demned man cited — and the Supreme
Court majority assumed as valid —a
study showing sharp racial disparities

in the sentencing of killers in Georgia, .

.| showing in particular that capital pun-

ishment was far more likely in cases
involving black killers of white victims.
It was the most important death pen-

‘| alty case since 1976, when the Court up-

‘| held new state laws that reinstituted

‘capital punishment, four years after

‘| the Justices had struck down all death

| penalty laws as ‘‘arbitrary and capri-

-| cious” in a decision that turned in part
on racial disparities.

}
{

SR CERacinnces

Foes’ Last Broad Challenge
The Court’s decision today provoked

| bitter dissents that accused the ma- .

jority of distorting established legal
principles to avoid overturning numer-
ous death sentences, The ruling ended
what death penalty opponents had

called their last sweeping constitu- . -
tional challenge to capital punishment,

It will speed the pace of executions
somewhat, experts said, although the
immediate effect may not be dramatic

_|-because many of the nearly 1,900 con-

victs on death row have not yet ex-

| hausted their appeals on various,issttes

unrelated to today’s decision.»
‘Justice Lewis F. Powell Jr. wrote the
majority opinion, joined by Chief Jus-

tice William ‘H. Rehnquist and Justices

Byron R: White, Sandra Day O’Connor

and Antonin Scalia. Justices. William J.
Brennan Jr., Thurgood Marshall,
Harry A. Blackmun and John Paul Ste-

-vens dissented. [Excerpts, page 12.] 4

Had the dissenters won one more
vote, it would have clouded hundreds of

Continued on Page 13, Column 1 *

[g6


several weeks later on an unrelated .
ce, confessed to participating in the
robbery. He and his accomplices were tried Separately. The others re-
ceived prison terms of varying lengths.

At his trial in October 1978, one of the accomplices identified Mr.

McCleskey, who was the 3 30 years old, as the man who shot Officer

Schlatt. Two other witnesses testified that they had overheard Mr.
McCleskey brag about killing the officer.

On Oct. 12, a jury of; 11 whites and one black convicted him of two
counts of armed robbery\and one count of murder. After a hearing in.
the penalty phase of the trial, he was sentencd to die,in Georgia’s elec-
tric chair. |

Two lower Federal \courts rejected that argument before the.
United States Supreme Court did so yesterday, =.

The Supreme Court’s ecision does not mean an end to Mr. McCles- _-
. key’s appeals on other grqunds, according to Tanya E. Coke, director of
Capital punishment project. “It’s
not the end of the line for Mr. McCleskey,” she said.

Veus- rN TIM ex pt 12.

Thurday £-23-§7


The NATIONAL EXECUTION ALERT NETWORK is a project
of the National Coalition to Abolish the Death Penalty
For more information, contact: Pamela Rutter, NCADP

1325 G St. NW LL-B, Washington DC 20005 (202)347-2411

Peacenet Access Code--ABOLITION//Non-Business Hours Alert Answering Machine 202-347-2415
Partial Funding for the Alert Network is provided by the J. Roderick Mac \rthur Foundation,
the A.J. Muste Memorial Institute and the Boehm Foundation.

ALERT 91-6 7 | Septernber 12, 199]
**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**EXECUTION ALERT**
TEXAS 19 SEPTEMBER 1991] ! LETHAL INJECTION

JAMES RUSSELL, (Black), age 41 has been on death row since 1977. He Was
convicted of the kidnapping/murder of a white male. James was tried by an all
white jury and represented by an elderly attorney, smelling of alcohol throughout
the trial.

TAKE ACTION, CONTACT: Attny Gen. Dan Morales Gov. Ann Richards

PO Box 12548 PO Box 12428
Austin TX 78711-2548 Austin TX 787) 1-2428
(512) 463-2100 | (512) 463-2000

FAX (512) 463-1849

LOUISIANA 19 SEPTEMBER 199] LETHAL INJECTION
ANTONIO JAMES, (Black), age 36 has been on death row since December 1981. He
was convicted of the robbery/murder of a white male. His co-defendants received
lesser sentences.

Recent tests and studies have proven James to be mentally retarded with an
IQ somewhere between 58-60. Psychologists have given him the mental age of 9
years old. The 2nd youngest of 7 children, James comes from a family where he
was physically abused as a child by his father. He finished the 5th grade at age 15
with learning disabilities. When he quit school he was illiterate, while on death row,
he has learned to read and write.
TAKE ACTION, CONTACT: Gov. Buddy Roemer LA Pardon Board

PO Box 94004 Chair Yvonne Campbell
Baton Rouge LA 70804 504 Mayflower St,
(S04) 342-7015 Baton Rouge LA 70802
FAX (504) 342-0909 (S04) 342-5421]
: FAX (504) 342-3087
GEORGIA _24 SEPTEMBER -- 1] OCTOBER 1991 ELECTROCUTION

WARREN MCCLESKY, (Black), age 46 has been on death row since October 1978.
He was convicted of the murder of a white police officer. McClesky’s 4 co-
defendants all received lesser sentences. There is significant doubt that -McClesky
was the triggerman in this murder. .
McClesky’s case is the Ist case to charge racism in the death sentencing.

McClesky presented to the United States supreme Court evidence from a detailed
statistical study that showed racial discrimination affected his case and all others in
which the death penalty is sought. The Court, upholding the legacy of racism that
has infiltrated the administration of the criminal justice system in this country,
decided that it did not matter that the death penalty is imposed in a racist
manner, and turned McClesky down.
TAKE ACTION, CONTACT: State Board of Pardons and Parole

2 Martin Luther King Jr. Dr. SE

Sth Floor East Tower

Atlanta GA 30334

(404) 656-5651

Wayne Snow Jr. Chair and other Pardon Board members

James T. Morris, Bettye O. Hutchins, Timothy Jones, Merle Clark


~ Capital, Punishment Upheld

Against Key Racial Charge

Continued From Page 1

death sentences around the country,
not just that of Warren McCleskey, the
defendant in the Georgia case.

Studies have found that racial dis-
parities in death sentencing are com-
mon in other states as well. But defend-
ants who had hoped for broad invalida-
tion of death sentencing Systems be-
cause of such disparities must now
base their appeals on more:particular-
ized objections to their individual sen-
tences.

Writing for the majority, Justice
Powell said Mr. McCleskey’s argu-
ments “basically challenge the validity
of capital punishment in‘ our: multira-
cial society” and ‘‘the principles that
- underlie our entire criminal. justice

system,” especially the discretion of
. criminal prosecutors to decide when to

seek the death sentence and of juries in

deciding when toimposeit.,  * '

That discretion is certairi.to lead to

disparities, the Justice wrote. But to
show unconstitutional racial discrimi-
nation in death sentencing, he said, a
defendant “must prove that the deci-

sion makers in his case acted with a.

discriminatory purpose” by producing
,evidence specific to the case; a gener-
‘alized study showing statistical dis-
parities was not enough. ©

Dissenters See ‘Intolerable’ Risk

‘Justice Brennan, joined by the other
three dissenters, said ‘“‘the risk that
race influenced McCleksey’s sentence
is intolerable by any imaginable stand-
ard,” and suggested that the decsion
amounted to “complete abdication of
- our judicial role.”

He said the statistics showed that “‘a
majority of defendants in white-victim
‘crimes would not have been sentenced
to die if their victims had been black.’
Noting that overt racial discrimina-
tion was once written into'the criminal
laws of Georgia, where killing a black
slave “was not considered .a serious
crime, he said the study showed: the
_ persistence of more subtle racism, and:
that “we remain imprisoned by ' the
past as long as we deny its influence in
the present.” ‘

Justices Blackmun and Stevens also

wrote separate dissents. 41%

The statistical study, by Professor
David C. Baldus of the University of
Iowa and others, showed that 11 per-
cent of all those charged with killing
white victims in Georgia and 22 per-
cent of the blacks accused of killing
whites were sentenced to death, as
against 1 percent of those charged with

_ killing blacks. ‘

These raw statistics were then ad-
‘justed to take account of dozens of ag-
gravating and mitigating factors likely

to influence sentencing decisions in the
2,484 cases studied — the researchers
considered, for example, whether the
killing resulted from a family dispute

or happened in the course of a robbery.
But killers of whites were still more
than four times as likely to get the
death sentence than killers of blacks.
While 60 percent of Georgia homicide
victims are black, all seven people put
to death in Georgia’s electric chair
since the 1976 decision upheld the
state’s death penalty law were con-
victed of killing white people; six of the
seven murderers were black.
Mr. McCleskey, after being con-
victed of shooting the policeman to
death during a furniture store robbery,
was sentenced to death by a jury of 11

a Associated Press
Warren McCleskey was defend- |
ant in the Supreme Court case. |

whites and one black.

Justice Powell assumed the validity
of the Baldus study, but he termed it
“clearly insufficient to support an in-
ference that any of the decision makers
in McCleskey’s case case acted with
discriminatory purpose.”

In rejecting Mr. McCleskey’s argu-
ments. that Georgia’s death sentencing
system violated both his 14th Amend-
ment right to equal protection of the
laws and his Eighth Amendment right
not to be subjected to “cruel and un-
usual punishment,” Justice Powell
wrote:

“At most, the Baldus study indicates
a discrepancy that appears to corre-
late with race,” adding that ‘‘apparent
disparities in sentencing are an inevi-
table part of our criminal justice sys-
tem,” and that the study ‘‘does not

demonstrate a constitutionally signifi-

cant risk of racial prejudice affecting
the Georgia capital-sentencing pro-
cess.” ,
“Because discretion is essential to
the criminal justice process, we would
demand exceptionally clear proof be-
fore we would infer that the discretion
has been abused,”’ Justice Powell said.
He said that if the Court upheld Mr.
McCleskey’s claim, it might encourage
widespread challenges by others
claiming all manner of racial and sex-
ual disparities in all kinds of sentenc-
ing decisions, or even by defendants
claiming they were treated harshly be-
cause of such traits as physical unat-
tractiveness.

Justice Powell also stressed the limi-'

tations of the judicial role: ‘‘It is not
the responsibility — or indeed even the
right — of this Court to determine the
appropriate punishment for particular
crimes.” -

Noting that ‘‘the elected representa-
tives of the people in 37 states and the
Congress have enacted capital punish-
ment statutes” conforming‘ to stand-
ards the Court has laid down since 1976
for avoiding arbitrary sentencing, he
said, ‘‘McCleskey’s arguments are,
best presented to the legislative
bodies.”’

John Charles Boger, a lawyer ‘with

‘the,NAACP Legal Defense and Educa-

tional Fund who represented Mr.
McCleskey, said today: “The racial
discrimination, in our judgment, exists
and will continue, and an opinion can’t

fight against this injustice in whatever)

an arbitrary sentence, rather than the

wish it away. So we will continue to

forums are availabletous.”

In oral arguments in the case, Ma
Beth Westmoreland, a lawyer. for the
state, said the racial disparities in
death sentencing could be explained by
the fact that blacks were more. often
killed in “family disputes, lover dis-
putes,” barroom fights and the like.
Whites, she said, are more often killed
in robberies and other crimes more
likely to provoke ‘‘the moral outrage of
the community.”

Justice Powell did not rely on such
arguments in today’s decision, McCles-
key v. Kemp, No. 84-6811.:He implicitly
rejected them by assuming the validity
of the Baldus study, which found that
even when the type of murder was
taken into account, the racial dispari-
ties persisted.

In attacking the majority’s logic,
Justice Brennan stressed the “‘irrele-

vance” of Justice Powell’s observation ||

that Mr. McCleskey had not proved the
influence of race on his particular
death penalty.

He said the Court’s prior death pen-
alty decisions had been based on fac-
tors showing ‘‘the risk of imposition of

proven fact of one,’”’ and that the evi-
dence “relentlessly documents the risk
that McCleskey’s sentence was influ-
enced by racial considerations.” \

‘“‘Warren McCleskey’s evidence con-
fronts us with the subtle and persistent
influence of the past,’’ Justice Brennan

T HE NEW YORK TIMES, TH URSDAY, APRIL 23, 1987

said after reviewing the nation’s his-}
tory of racial discrimination.

“His message is a disturbing one to a
society that has formally repudiated
racism, and a frustrating one to a na-
tion accustomed to regarding its des-
tiny 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.”

Justice Blackmun, also joined by the
other three dissenters, said that under
the Court’s ‘traditional analysis of
claims of unconstitutional racial dis-
crimination, ‘“McCleskey has demon-
strated a clear pattern of differential
treatment according to race that is
‘unexplainable on’ grounds other than
race.’ ”’ ,

<¢gg


152 Ga.

Steam & Operating Engineers v. Owens,
119 Ohio St. 94, 162 N.E. 386; Robinson
v. Dahm, 94 Misc. 729, 159 N.Y.S. 1053;
Brotherhood of Railroad Trainmen v. Wil-
liams, 211 Ky. 638, 277 S.W. 500; ‘Shaup
v. Grand International Brotherhood of
Locomotive Engineers, 223 Ala. 202, 135
So. 327; Simpson v. Grand International
Brotherhood of Locomotive Engineers, 83
W.Va. 355, 98 -S.E. 580; Donovan v.
Travers, 285 Mass. 167, 188 N.E. 705;
Long v. Baltimore & Ohio Railroad Co.,
155 Md. 265,141 A. 504; Pratt v. Amal-
gamated Association, 50 Utah 472, 167
P. 830; Gonzalez v. Roman Catholic
Archbishop of Manila, 280 U.S. 1, 50 S.Ct.
5, 74 L.Ed. 131; 5 CJ. 1364; 7 CJ.S., As-
sociations, § 25, p. 59; Oakes on Organiz-
ed Labor & Industrial Conflicts, § 91.
Again, since it appears that the plaintiff
did appeal to the supreme governing body,
no question is involved as to whether such

appeal was a condition precedent to suit..

See generally, on this question, Order of
Railway Conductors of America v. Clark,
supra; Union Fraternal League of Boston
v. Johnston, 124 Ga. 902, 53 S.E. 241; Ed-
rington v. Hall, 168 Ga. 484, 148 S.E. 403;
Independent Order of Sons & Daughters
of Jacob of America v. Wilkes, 98 Miss.
179, 53 So. 493, 52 L.R.A.,N.S., 817; Rueb
vy. Rehder, 24 N.M. 534, 174 P. 992, 1 A.L.
R. 423; Dewar v. Minneapolis Lodge, 155
Minn. 98, 192 N.W. 358, 32 A.L.R. 1012;
Employee’s Benefit Ass’n v. Johns, 30
Ariz. 609, 249 P. 764, 51 A.L.R. 1414;
5 C.J. 1359, § 83.

[5,6] “In every tort there may be ag-
gravating circumstances, either in the act
or the intention, and in that event the
jury may give additional damages, either
to deter the wrongdoer from repeating the
trespass or as compensation for the
wounded feelings of the plaintiff.” Code,
§ 105-2002. Since the allegations must be
taken as true, in reviewing the case on
demurrer or motion to dismiss, on a con-
sideration of the petition as a whole, the
allegations contained in paragraph 37 were
sufficient as a matter of pleading to au-
thorize a claim for punitive damages, and
were not subject to any grounds of the
special demurrer, Southern Railway Co.
v. Jordan, 129 Ga. 665, 59 S.E. 802; Shef-
tall v. Zipperer, 133 Ga: 488, 66 S.E. 253,
27 L.R.A.,N.S., 442; Woodruff v. Hughes,
2 Ga.App. 361(2), 58 S.E. 551. “The ex-
penses of litigation are not generally al-
lowed as a part of the damages; but if

199 SOUTH EASTERN REPORTER

the defendant has acted in bad faith,
* * * or has caused the plaintiff un-
necessary trouble and expense, the jury
may allow them.” Code, § 20-1404. Un-
der this principle the allegations contained
in paragraphs 37 and 38, considered with
other averments of the petition, were not
subject to special demurrer as failing to
show sufficient facts to authorize the al-
lowance of attorney’s fees.. Mendel v.
Leader, 136 Ga. 442(3), 71 S.E. 753;
O’Neal v. Spivey, 167 Ga. 176(3), 145 S.E.
71; Christopher v. Almond, 177 Ga. 211,
169 S.E. 899. “Though a bill be not
framed with accurate precision, yet, the
allegations will be sufficient, if they clearly
and distinctly apprise the defendant of
what he is called on to defend.” Black v.
Black, 15 Ga. 445(2), 49 C.J. 94. “The
plaintiff is not required to set forth the
evidence, either direct or circumstantial,
by which he expects to establish the trav-
ersable facts alleged im the petition.”
Cedartown Cotton, etc., Co. v. Miles, 2
Ga.App. 79, 58 S.E. 289; Atlantic Coast
Line Railroad Co. v. Wildman, 29 Ga.App.
745(2), 116 S.E. 858.

[7] Upon application of these princi-
ples, and in view of the other allegations
of fact in regard to the policies, paragraph
39, alleging the value of the policies can-
celed by the insurance department to be
$5,000, and laying the plaintiff's damage
in this sum, was not subject to special
demurrer on the ground that it did not
show how or why the policies were of
this value, or that the plaintiff was damag-
ed in this sum. There was no demurrer on
the ground that the plaintiff was seeking
in the same count to recover the premiums
paid, with interest, and also the value of
the policies. On the subject of election,
see Southern Railway Co. v. Chambers,
126 Ga. 404(5), 55 S.E. 37, 7 L.RA.N.S..
926. With respect to the individual de-
fendants, there was no merit in any of the
grounds of the special demurrer, or in
the motion to dismiss the action. As to
such defendants, the court erred in over-
ruling the motion of the plaintiff to vacate
the previous order sustaining the special
demurrers, and in sustaining the motions
to dismiss the action. While the petition
did not show sufficient ground for any of
the equitable relief sought, it stated a
cause of action for damages as to the in-
dividual defendants, and was not subject
to dismissal in its entirety. Gillis v. Hil-
ton & Dodge Lumber Co., 113 Ga. 622, 38

McBRIDE v. STATE Ga. 153

S.E. 940; Blaylock v. Hackel, 164 Ga.
257(5),.138-S.E; -333.

Judgment reversed in part and affirmed
in part. z

All the Justices concur. —

3

SANDERS v. PASCHA‘., Sherlff.
No. 12452, ,

Supreme Court of Georgia.
Sept. 27, 1938.

Syllabus by Editorial Staff.

1. Habeas corpus €=92(1)

The only question in habeas corpus pro-
ceeding for release of one charged with
crime is legality of his detention, and such
writ cannot be employed to determine his
guilt or innocence, review alleged irregular-
{ties or errors of procedure in commitment
trial before magistrate, or test evidence on
which applicant was committed. Code 1933,
§§ 27-407, 50-116(1, 2, 6), 102-102(6).

2. Ball €=52
A $500 bond, required by committing
officer for accused’s appearance to answer to

charge of kidnapping, was not unreasonable
as matter of law.

3. Habeas corpus @>113(12)

The superior court did not err in deny-
Ing application for writ of habeas corpus by
one whose detention on charge of kidnapping
was not shown to be unlawful.

——$$<

Error from Superior Court, Putnam
County; James B. Park, Judge.

Habeas corpus proceeding by A. B. San-
ders, next friend, for release of one charg-
ed with kidnapping from the custody of
5 ie Paschal, Sheriff. Judgment denying
the writ, and applicant brings error.

Affirmed.

Sidney T. Wingfield, Jr., and R. C. Jen-
kins, both of Eatonton, for plaintiff in error.
W. W. Walker and R. C. Whitman, both
of Eatonton, for defendant in error.
199 S.E.—10%

BELL, Justice.

{1] 1. On the trial of an application for
habeas corpus for the release of one charged
with crime, the only question to be deter-
mined is the legality of the detention. The
writ cannot be employed to determine the
guilt or innocence of the person detained;
nor can it bring into review alleged irregu-

larities or errors of procedure in the com- .

mitment trial before the magistrate, or test
the evidence on which the applicant was
committed. Code, §§ 50-116 (1, 2, 6), 102-
102 (6), 27-407; Stephens v. Henderson,
120 Ga. 218, 220, 47 S.E. 498; Young v.
Fain, 121 Ga. 737, 49 S:E. 731; Peebles v.
Mangum, 142 Ga. 699, 701, 83 S.E. 522.

*[2] 2. A bond in the sum of $500, re-

quired by the committing officer for the ap-
pearance of the accused to answer to a
charge of kidnapping, can not be said as a
matter of law to be unreasonable.

[3] 3. In the instant case the detention
of the applicant was not shown to be un-
lawful, and the court did not err in deny-
ing the application for the writ of habeas
corpus.

Judgment affirmed.

All the Justices concur.

O « KEY NUMBER SYSTEM

tame

McBRIDE v. STATE.
No. 12417.

Supreme Court of Georgia.
Sept. 27, 1938.

1. Homicide €=250

Evidence that arrestee, after submitting
to arrest and before officer touched him or
demonstrated any show of violence towards
him, and without questioning identity of of-
ficer, or his right to make arrest, shot and
killed officer at time when there was no ac-
tual or apparent necessity to do so, either to
save his own life or to prevent a felonious
assault being committed on him, justified
conviction for murder, notwithstanding that
arrest may have been Illegal.

2. Homicide €308(3)

In prosecution of arrestee for murder
of officer, charge on law of murder was not ’
error under evidence.

*QC6T-l-IT UO (YOUTTO) °eD *oeTe *TE SyoeTQ Soeesy *MITUAOW

“SARA
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UNIVERSITY
erm

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-

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154 Ga,

3. Homiclde €=296

In prosecution of arrestee for murder of
officer, charge that defendant, unless arrest
was legal, could have resisted an unlawful
arrest by all necessary force, or have avoid-
ed the attempted assault by running away
from the officer, was not error under evi-
dence.

4. Homicide €=296

In prosecytion of arrestee for murder of
officer, charge that it is murder to kill an
officer to prevent him from making a legal
arrest was not error, notwithstanding fail-
ure of evidence to show that officer was
attempting to make legal arrest, where it
was undisputed that there was no attempt
to prevent the officer from making the ar-
rest, the only conflict in the evidence being
as to the identity of the assailant.

5. Homicide €=296 .

In prosecution of arrestee for murder
of officer, failure to charge in relation to
probation law was not error. Code 1933, §
27-2705.

6. Criminal law 921

In prosecution of arrestee for murder of
officer, exception reciting that Solicitor Gen-
eral stated in presence of jury that he tend-
ered in evidence a warrant and then asked
to introduce accusation and probation sen-
tence and showed that defendant had been
reported for violation of probation, and that
court admitted in evidence without objec-
tion warrant and accusation, and that So-
licitor General failed to introduce any evi-
dence on subject after making statement,
did not require grant of new trial.

Syllabus by the Court.

1. Treating the arrest as illegal, if after
it was completed, and after the accused had
submitted thereto, he without any other
provocation, and before the officer touched
him or demonstrated any force or show of
violence toward him, and without question-
ing either the identity of the officer or his
right to make the arrest, shot and killed the
officer at a time when there was no actual
or apparent necessity to do so either to save
his own life or to prevent a felonious as-
sault being committed on him, the jury were
authorized to find him guilty of murder.

2. In view of the facts appearing, it was
not error (a) to charge the jury on the law
of murder, (b) or to charge that the defend-
ant, unless the arrest was legal, could have
resisted an unlawful arrest by all necessary

199 SOUTH EASTERN REPORTER

force or have avoided the attempted assault
by running away from the officer.

8. The assignment of error on_ the
charge that it is murder to kill an officer
to prevent him from making a legal arrest,
the complaint being that there was no evi-
dence to show that the officer was attempt-
ing to make a legal arrest, affords no rea-
son for the grant of a new trial; it ap-
pearing without dispute that there was no
attempt to prevent the officer from making
the arrest, the only conflict in the evidence
being as to whg was the assailant.

4. It was not error to omit to charge
in relation to the probation law, Code § 27-
2705.

5. A ground of exception reciting that
the Solicitor General stated in the presence
of the jury that he tendered in evidence
a certain warrant, “and then asked next to
introduce the accusation and the probation
sentence, and then to show that he had been
reported for violation of the probation,”
that the court then admitted in evidence,
without objection, the warrant and the ac-
cusation, “and that the Solicitor General
failed to introduce any evidence on that
subject after making the statement,” pre-
sents no reason for the grant of a new
trial. =

6. The verdict was authorized by the
evidence.

RUSSELL, C. J., and ATKINSON, P.
J., dissenting in part.

—__>—————

Error from Superior Court, Clinch Coun-
ty; W. R. Smith, Judge.

Isaac McBride was convicted of mur-
der, and he brings error. :

Affirmed.

Isaac McBride was convicted on an in-
dictment charging him with the murder
of Carey Thomas by shooting him with
a pistol on January 14, 1938. The jury
did not recommend mercy, and the de-
fendant was sentenced accordingly. The
evidence for the State shows, without dis-
pute, that Carey Thomas was a deputy
sheriff of Clinch County, and had been
serving as such for seven or eight months,
making arrests in and around the county,
and was well known in the county. On
January 14, 1938, in company with John
Ray, Thomas went to the home of a negro
named Holzendorff. The defendant was
at Holzendorff’s home, having spent the

&

McBRIDE v. STATE Ga -:155

night there. Thomas and Ray reached

the house about 10:30 or 11 o’clock in the
day time, and the house was open. When
they walked in, the defendant was sitting
on the end of a cot near the fireplace.
Thomas had his pistol in his scabbard,
and said, “All right, Isaac, let’s go,” and
Isaac replied, “All right, sir.” According
to the testimony of Ray, the only eye-
witness to the shooting who testified for
the State, Isaac then got up “and made
one long step and a short step toward
Mr. Thomas, and he [Isaac McBride]
shot. At the time he shot, Mr. Thomas
did not have his gun in his hand... He
shot once in the direction of Mr. Thomas.
I judge he was something like ‘six or
eight feet from Mr. Thomas. He held
his pistol in his hand, down by his side;
it fired, and then Mr. Thomas shot; then
Isaac shot again; then Mr. Thomas lean-
ed over, and Isaac shot again.” On cross-
examination he testified: “When Mr.
Thomas walked in the house he did not
have the pistol or anything else in his
hand.” F. W. Jernigan, for the State,
testified that he embalmed the body of
Thomas; that there were three wounds
on the body, “one wound was through the
liver on the right side; the other one
went through his arm and broke the bone
in his arm, and then into the abdominal
cavity; the next one came through his
ear, through the top and out, and touch-
ed this part of the ear [indicating] and
in his neck and out into the left lung.
It is my opinion that either of the wounds
would have been a mortal wound.” Jer-
nigan further testified that in preparing
the body for burial he found some hand-
cuffs in the pockets of the deceased, and
a deputy sheriff’s badge on the left pocket
of his shirt; and added, “I think a part
of it [the badge] was displayed. The
best I remember, the badge was pinned
to his shirt pocket.”

Lucius Holzendorff, the only eye-wit-
ness to the shooting who testified for the
defendant, corroborated the testimony of
Ray with respect to the conversation which
took place between Thomas and the de-
fendant, but testified that Thomas was the
Person who started the shooting, rather
than the defendant. According to his
version of the occurrence, Thomas and
Ray entered the house. “When Mr.
Thomas and Mr. Ray came in, the first
thing I heard Mr. Thomas say was, ‘Let’s
80, talking to Isaac. Then Mr. Thomas
asked Mr. Ray if that was him, and Mr.

8.E,

Thomas made a sign to shoot in the di-
rection of Isaac. After he asked the
question as to whether or not that was
the man, Mr. Thomas started shooting;
he shot first. I don’t think I could have
been mistaken about that. * * * They
were in the house before I knew they
were there. * ©* * They were just
inside the house when Mr. Thomas ask-
ed Mr. Ray if that was the man. I don’t
suppose he was speaking about me; he
just nodded his head and asked was that
him, and then Mr. Thomas told him to
‘Let’s go,’ He says, ‘All right, Isaac,
let’s go.’ He called him by his first name,
and Isaac got up and said, ‘All right.’
* * * When Mr. Thomas said that,
he was just inside the door, stopped still.
When I seen him he was shooting. My
face was turned towards the fire, and
when I saw him he had done started to
shoot. I didn’t detect that Mr. Thomas
shot but one time. Isaac got up before
Mr. Thomas shot. I saw Mr. Thomas
shoot. I wasn’t looking at Isaac. I don’t
know whether Isaac had pulled his pistol
out and had it ready in a shooting position
when Mr. Thomas shot, or not. * * *
I am sure Mr. Thomas shot first. * * *
Isaac McBride shot three times.”

The defendant’s motion for new trial,
on general and special grounds, was de-
nied, and he excepted.

Joe Schreiber and John W. Bennett,
Jr., both of Waycross, for plaintiff in
error.

H. C. Morgan, Sol. Gen., and Bruce
B. Greene, both of Homerville, M. J.
Yeomans, Atty. Gen., Ellis G. Arnall, Asst.
Atty. Gen., and Emil J. Clower, of At-
lanta, for the State.

GRICE, Justice.

[1] 1. To resist by force an illegal
arrest is one thing. To submit to an
illegal arrest, and then to kill the officer
who made the arrest, is another. The
unlawful arrest would have justified the
defendant in breaking away, resisting and
repelling force with force. Coleman v.
State, 121 Ga. 594, 599, 49 S.E. 716. The
verdict can and must stand on the bare
proposition that even though the arrest,
or attempted arrest, of the defendant by
Thomas, without a warrant, was illegal,’
nevert 1eless, after the defendant, without
question, had submitted to the arrest, and
(according to the testimony of an eye-
witness who testified for the State) be-

*

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“CASA

£

wet

_ UNIVER

of.

Y UF
2 he toe 4%


ATH PENALTY CASE ce

> Carried out?

‘McCleskey and three others. =>

> Electric a considered cruel +3.
and DRUCTARG: pele = 8

Lie 2

ther’ S death Mrs. Swannef' was 11. when ~
her father was killed. Bees bia.

- Warren McCleskey (left) was convicted .

‘ of killing Officer Frank Schlatt, who was _ af

shot during a 1978 robbery involving

‘

a wrotild never had ales McCleskey the

their testimony i in MOC IRsRey. s- 1978. -

(fal. pNeentn} ve -

Southern’. “ Cheistiant ‘igadership
f Confeberice President Joseph Lowery, °

: - death penalty had they known theinfor- ae
--mants received reduced_sentences for >

ag

.
t

ae we

who attended the board hearing, ac- ‘

cused the coverminent, of unethical be- :

havior,

“They would not only “ice a i bald
- informant in a: cell next to the defen- .
dant, but they withheld from the jury -
the fact that this man is going to benefit
_ from this testimony,” Mr. Lowery said.
“I think it’s incredible that our govern-
. ment would go to that extent to destroy .’
* and wipe out a human life.” te os

Nick ‘Aroyo/Staft ‘Took him 13 years’ to apologize - i

The board, citing an intention to be.
Sensitive to crime Nictims, heard from -
Officer Schlatt’s family — a first in the |
-panel’s 44- -year. history.

Mrs. Swanner, who was 111 when her ?

father was killed, said she was not im-

*
:

x
¥

‘
2
a
«
’
a
+
*

ws

ak

1

pressed with McCleskey’ s public apolo- |
gy in an Atlanta Journal- (Constitution

interview last week.
“Tt took him 13 ears to say y he’ s sore.

"ry, to realize that we are human be: -
ings,” she said. “I hope he’s made '

peace with the God he believes in. -
gis remember my. father | as a good

man. He believed in the justice system, -

‘It’s.a shame it’s taken so long for the .

~ justice he believed i in to be aired out,” (oe

she pad


" McCleskey’s execution
would end landmark casé

ONE APPEAL PER PERSON:
Conservative courts rejected
his arguments with two key
rulings, one limiting such
lengthy death-row cases.

By Mark Curriden
Staff writer

Ask to see the Warren
McCleskey file and Assistant At-
torney General Mary Beth West-
moreland will laugh in your face.
. The death-row inmate’s case
' takes up three room-length
- shelves and several boxes on the
floor.

x

| death-penalty appeals what Roe

SF the 46- year-old. convicted cop

& us

preme | Court rulings that: he

} aes

yt a)
Ae ia
f pues

times » death-

Georgia v. McCleskey is to

anions Wade i is to abortion. The land-
C mark: case, which is expected. to.

“end: ‘Tuesday’ with the execution had they been. told an informant»

pl Cle sk ee
killer, has prompted key U.S. Sug rs ant ie Mc eS One sce sr :

Limited“ the “number of |
oe inmates can

ie Peano te R ape bog

Sb ee eee ee

\

appeal. |
> Banned the use of statistics

to prove racial discrimination in

death-penalty cases.

The former Lockheed worker
from Marietta, whose path to 16-
gal immortality began with the
1978 shooting death of an Atlanta
police officer, has maintained
innocence from the beginning. «

With appeals exhauste@,
McCleskey’s attorneys Monda
will ask the state Board of Pag-
dons and Paroles for clemencf,
urging them to convert Mociee :
key’s sentence to life in prison:

Even his last-ditch bid for life
has an interesting legal twist:
torneys in the case filed affidg-

vits from two of the original, jy...
“rors | ‘who. “said: ‘they. “would ‘ngt :
- have voted for. the. death penalty.

AG AY ced vicina ug
Please e see ‘MeCLESKEY, oS


State under fire _
in murder appeal

ASHINGTON - A lawyer fora .

Georgia death row inmate yes-
terday accused the state of using an
Hegally obtained jailhouse confes-
sion to convict his chent and hiding
this information from defense law-
yers. John Boger, arguing before
the Supreme Court in behalf of
Warren McCleskey, said the state
forsnine years withheld from de-

fense lawyers a written statement -

from the inmate to whom McCles-
key allegedly confessed to the 1978
slaying of -an-Atlanta police officer
‘na furniture store robbery. (AP)


Gosn Ty TIN 4

7
' iC4 Tuesday, September 24, 1991 exrass :

Methods of execution by state

| Electrocution Gas.Chamber . LJnone
| Ed Lethal Injection [£] More than one*

: *These states give the inmate an option’ as to which manner they wish to die. |
r . As of Sept. 15, those sentenced to die in Louisiana will be given lethal injection.

By Mark Curriden
SSH Mite, Pag (|

 Watrer McCleskey, who. is
"likely to be the first Georgia in-

mate executed in two years, is

-": séntenced to die in the electric
a \ chair —a form of capital punish-
rt ment that even some death pen-

}alty proponents believe is cruel

ee. . and inhumane,
- Across the nation, states in
ia “recent years have turned to le-
: thal injection because civil liber-
:' tarians increasingly have criti-

| cized electrocution and the. gas

“chamber. Bee
, Nineteen ‘states and the U.S.
ah military have. chosen lethal in-

‘jection as the preferred method °

_ of execution, while only 12 have

retained the. electric chair. Five :

ai = Gimp icy the gas chamber.
". “The Department of Correc-

: * tions has no: Position on what
ow » form of execution is required,”

Tell *, Said department: spokesman:
° ¥ Andy Bowen; “Whatever the’:

*. Legislature wants. .us to do is
ey ‘what we will do.”

.. . Georgia. officials appear: sat-

isfied with the electric chair.:The
last time the Legislature consid-
bo ered changing to lethal injection
“ve ‘was in 1984 when the House of

ic - Representatives approved sucha |

“2 measure. It died in a Senate com-
‘wo mittee! . ¢ :)%¢
_ -“I don’t ‘see any fied” to

i '.. change, ” said Attorney General.

ve ‘Michael J. Bowers. “I have some
Jel ;; trouble with lethal injections,

] Lethal injection: now
‘a Le apahiee method

.. mate to choose causes all kinds of
‘Uleeoiiag #

‘mates to chose between lethal in-

the Supreme Court ruled it cruel | |

Staff

particularly making it a medical
procedure. Doctors are supposed
to save lives and I think that
would be a violation of their Hip-
pocratic oath.”

The American Medical Asso-
ciation (AMA) agrees with Mr.
Bowers and has officially prohib-
ited its members from partici-
pating in lethal injection execu-
tions. In many. states, a medical
technician or, registered nurse
administers the injection.

“A physician, as a member of
a profession. dedicated to pre-
serving life when there is hope of
doing so, should not participate
in legally ‘authorized execu- |
tions,” ‘the AMA policy states.
The AMA does not prohibit phy-
sicians from certifying death at
an execution.

“We would prefer it not be
optional for the -inmate,” Mr.
Bowen said. “Multiple forms of |
execution and. allowing the in- |

“Idaho and Utah allow its in- | |

jection and a firing squad. In-
mates sentenced to die in North | ,
Carolina can die by lethal injec- | |
tion or the gas chamber.

Before the electric chair,
hanging was the capital punish-
ment of choice in Georgia until

and unconstitutional in 1922. De-
spite that ruling, Georgia hanged
inmates until 1929.


“the 608 and 70s. Northwest winds 10 to 20 mot
inland. Coastal fog and clouds Monday night.

air inland, Lows in the upper 30s. Mostly

cloudy at the coast Tuesday. Increasing clouds in the north. Fair elsewhere, Highs from the.

mid 50s at the coast to the low 70s inland.

SACRAMENTO VALLEY Sunny with highs in the 70s. Fair Monday night with lows in the .

40s. Sunny Tuesday with highs in the 70s.

SIERRA NEVADA Mostly sunny. Clear Monday night and Tuesday.

SALINAS VALLEY Sunny after morning clouds and fog in the north. Highs from the mid 60s
to the upper 70s. Mostly cloudy in the north and fair elsewhere Monday night, Lows 35 to
50, Morning cloudiness in the north Tuesday, omerwier sunny: Highs from the upper 60s to

the upper 70s.

SAN JOAQUIN VALLEY Sunny with highs in the 70s. Light winds. Fair Monday night. Lows

in the 40s. Sunny Tuesday with highs in the 70s and low 80s.

DEATH

— From B-1

sor Samuel R. Gross found the same
pattern in a statistical study he and
former Yale University professor
Robert Mauro did of sentences in
‘eight states — Florida, Georgia, Illi-
nois, Oklahoma, Mississippi, North
Carolina, Virginia and Arkansas —
in the late 1970s.

“The discrimination ,we discov- .

ered based on the race of the victim

is a rene ae stable and consis-.

tent phenomenon,” Gross said. “I
don’t think this is a body of infor-
mation anybody can seriously chal-
lenge, although that doesn’t mean
lawyers won't. To me, the question
is the legal significance attached to
it and what will be done about
that.”

The California case, while not
before the U.S. Supreme Court, also
addresses the issue of race in death.
sentences.

In June 1985, retired California

‘appellate court Justice Bernard Jef-

ferson, named by the state Su-
preme Court as a fact finder, or-

dered prosecutors to produce re-_

i > iti, ,
13. 5.7 759 GG™
21 25 4.4 7:36 2 33.32
1:42 5.6 8:33 0.2.
22 430 843 818 3.7.
2:17 5.5 9:19 / 0.4
Tidal differences: , &
San Mateo Bridge + 39 min..high; + 74'min. fow; +
1.9 feet high; + 0.1 feet low. Richmond + 21 min
high; + 28 min. low, + 0.1 feet high; 0.0 feet low
Dumbarton Bridge + 48 min. high; + 67 min. iow; +
2.7 feet high; ee oo z Strait +114
min. high; + 136 min, low, + 0.3 feet high; - 0.1 feet -

low, Bold type indicates p.m. time.

cords of ‘all potentially capital |

homicide cases since the death pen- -

alty was restored in 1977. The pur-
pose was to study whether defen-

dants were discriminated against.

“because of the race of the victim,

‘the race of the defendant and/or

the gender of the defendant.”
The court later modified the or-

der, but prosecutors still had to —

come up with a name and case num-
ber for every “capital-eligible” con-
viction in California since 1977.

“It was an incredible task,” said :

Deputy Attorney General Susan’
Frierson, who has done consider-

‘able work on the Jackson case. “It’s

, ~

HOMES —

— From B-1

“San Francisco to take aes of
low-income housing in Oakley.”

She said they are also worried
about locating the project across the
street from a proposed school and
neighborhood park.

“It's been my experience and the
experience of other people here that
when you build low-income housing

across the street from a park and a

‘school, it can pose a big drug prob-

lem,” she said.

Abe Amador, who has been work-

ing for low-income housing for farm
workers in the Oakley/Brentwood
area for more than 20 years, said he “

was hurt by. the attitude. ae Con-

cerned Oakley Residents,

“We are talking about Shine peo-
ple who have lived here all their lives
the only chance they'll ever have to
own a home,” he said. “They have
said they don’t want poor people in
their back yards. I have even heard

_people say at meetings as an‘aside, ‘I

don’t want Mexicans or. yrs in
“my back yard!" :

st ak A ef Neha

~~

es wid ta

But Kearney strongly denies any —

racist sentiment. among the neigh-
bors.
“I would be personally offended

. by something like that and I haven’t
heard anything like it at any of our.

meetings,” she said. ©
Meanwhile, Maria Luisa Ortega:

rents. a home with her husband, Sal-;.
vador, and their five children in an* ©

older section of Oakley not far from .
Kearney’s development. Salvador
Ortega makes about $14,500 a. year

preparing the fields for local farm-
ers. There is little hope the family
ever will q

4a? ey

“%

| for’ a anal peed

es

Rises - 7240, m..

Ros 2329m) “The pos
Full ‘Last Qtr. New. ‘ 4st r pots, a

a fantasy | that ‘there are these co a
puter buttons everywhere and all

you have to do is push them to get © - torial pe
what you want. - many instances, » ' "
this was a BS 2 yop MlayeOne g

M “ : ee “aaa Meee “
‘She said tee is “no way of eas

Aine att ese

SAVES

NOW

‘Loon mn p ;

Death penalty
in USA called
‘legal murder’ |

By Mark Mayfield
USA TODAY

i ATLANTA — Amnesty In-
t » ternational Monday accused
_ , the USA of “legalized murder”
in using the death penalty.

At a seminar on racism and
the death penalty, opponents
promised to step up protests.
The timing is right, they said,
because there’s an opening on
the Supreme Court and a presi-
dential election is approaching.

. “The death penalty, as prac-
ticed in the United States, is an
international human rights is-
sue,” said Charles Henry,
chairman of Amnesty Interna-
tional USA. “We fail to recog-
nize that the death penalty nev-
er has been and never can be
administered fairly.”

Civil rights leaders ex-
pressed outrage that Georgia
has scheduled a mid-July exe-
cution for Warren McCleskey,
whose case led to a landmark
U.S. Supreme Court decision in
April that upheld the death
penalty but admitted there are
“disparities in sentencing.”
| McCleskey was sentenced to

death for killing a white Atlan-
ta police officer. Evidence at
his appeal showed that killers
in Georgia whose victims were

; 4 | | white were 11 times likelier to
) get the death penalty than kill-

ers whose victims were black.
“We will challenge the death
penalty at every opportunity
and we will go back to the U.S.
Supreme‘ Court again and ©
| again until they get it right,”
said civil rights leader Coretta
|| Scott King, .....

BIN EOP oy andes Ee SE ee tn Fee

USA TODAY * TUESDAY, JUNE 30, 1987 - 3A

i Picking a judge, 1A, 2A, 4A


_ ——e.

CO

Killer of policeman

executed in Georgia

Saying he was ready to “enter
the gates of heaven,” Warren
McCleskey' was executed
Wednesday in Jackson, Ga., for
| the murder of
: Atlanta police

officer Frank

Schlatt in 1978.

Last-minute

appeals to five

separate state
' and_ federal

courts led to

seven stays and

eight hours of

delays before
McCleskey finally died — at 3:13
a.m. — as 2,000 volts of electrici-
ty surged through his body.

McCleskey

Utah hospital siege

Suspect arraigned

The man accused of killing a
nurse and holding five adults and
three infants hostage in a hospital
maternity ward sobbed in court
Wednesday at his arraignment in
Salt Lake City. Richard Wor-
thington, unshaven and shackled
hand and foot, broke into tears
when he was led into the court-
room. He would not take his eyes
off his relatives and had to be led
to the podium to face the judge.
Worthington, 39, father of eight,
faces a charge of aggravated
murder, a death-penalty offense,
and 12 other felonies stemming
from the weekend Siege at a hos-
pital in suburban Sandy.

From Mercury News Wire Services

\. Jose Mercury News @

Thursday, Sept. 26,1991 9A

San Qose, CALE

ey allt at


Georgia cop killer dies in electric chair

for the 1978 shooting death of At-
lanta police Officer Frank Schlatt
_ during a furniture-store robbery.

Goatees down
his final appeals

ASSOCIATED PRESS

McCleskey was executed at 3:13
~a.m. EDT after the U.S. Supreme
Court denied the last of his ap-_.
: JACKSON, Ga. — Police killer peals.
Warren McCleskey, whose 13 .
vieie: cf tcepeaks douilted in two Two of earlier appeals led to
landmark Supreme Court deci-
sions upholding the death penalty,
died in Georgia’s electric chair ear- In one landmark case, McCles-_
. ly Wednesday. -_key, a black man whose victim was
McCleskey was sentenced to die white, raised the issue that blacks

sions.

landmark Supreme Court deci---

who killed whites were more likely

tt to be executed than whites who

- killed blacks. The Supreme Court
‘used his appeal in 1987 to bar the
use of statistics attempting to

prove race discrimination in death-
" penalty cases.

In April, the high. ark ruled

‘against McCleskey in a decision

that limited the number of times
death-row inmates may appeal.

Legal experts predicted that rul- |
~ ing would reduce by years the time
it takes to carry out an execution.

72 ALL:

San Franc cisco Exami

miner

Banaras

J
Wednesday afternoon
_SEPTEMBER 25, 1991

LATE SPORTS

EDITION
THIRTY-FIVE CENTS


Warren McClesky at Sept. 20 interview.

Inmate executed se

years of legal moves

By Peter Applebome
The Now York Times

ATLANTA — Warren Mc-
Cleskey,’ whosé two unsuc-
cessful appeals to the U.S.
Supreme Court helped define
death penalty law, was exe-
cuted yesterday morning af-
ter an all-night spasm of le-
gal proceedings that played
out like a caricature of the
issues his case came to sym-
bolize.

McCleskey, a black, 44-
year-old factory worker who
was convicted of killing a
white police officer here
during an attempted robbery
in 1978, was electrocuted at
the state prison in Jackson,
Ga., after a series of stays
issued by a federal judge
was finally lifted.

But when he died, after
declining a last meal and af-
ter being strapped into the
chair at one point and then
unstrapped three minutes
later, his execution added a
final unsettling chapter to
his odyssey through the
courts.

In a final legal scramble,

the Supreme Court twice re- »

fused a stay — once at about
10 p.m, ‘Tuesday, after a
state court denied last-min-
ute appeals, and then just
before 3 a.m. yesterday, af-
tera similar appeal was re-
jected by federal courts.

The court’s 6-3 decisions
came after the justices were
polled by telephone.

Five minutes later, after
McCleskey had _ been
strapped into the electric
chair and a final prayer
read, prison officials were
told that the Supreme Court
had rejected a final stay. A

” By Marlene Karas/Atlanta “oar

minute later the execution’ z

began, and he was pro-!
nounced dead at 3:13. - +
Justice Thurgood Marshall}

‘of the U.S. Supreme Court,’

who was one of three dissen-;
ters in the court’s decision’
not to halt the execution,
was stinging in his dissent. ‘

Marshall, who will retire:
when his successor is con-;
firmed by the Senate, wrote::

“In refusing to grant a:
stay to review fully McCles-
key’s claims, the court val-
ues expediency over human
life. Repeatedly denying
Warren McCleskey his con-
stitutional rights is unac-

ceptable. Executing him:.is, :

inexcusable,”

Two jurors at McCleskey’s.

trial said that information,

improperly withheld at:the |

trial tainted their sentence,

McCleskey, who filed re-,
peated appeals over the. 13
years between his conviction
and his death and had a long
succession of lawyers,
produced two: landmark-rul-
ings in death penalty law,”,’

In .1987, in the last major
challenge to the constitutioi:
ality of the death penalty,
the Supreme Court voted’,§-4
that the death penalty was
legal despite statistics show:
ing that those who kill white

people are far more fres .

quently sentenced to die than
are those who kill black Pee.
ple.

Last April the court voted
6-3 that McCleskey’s claiys
that his sentence was tainf¢
by information withhet fg
from the jury should be. re-
jected because he failed to
make the claim on his first
habeas corpus petition. ||)

2 mmantsts

VINUOUITVO ‘ANVTHV:

NOLLIGT OU“LAN

T66I ‘92 UAGWALdAS ‘AVOSUNHL ©


om

oe!

‘After McCleskey,
some expect leap
in Ga. executions

By Mark Curriden
Staff writer

For ‘13 years, Warren
McCleskey’ s case had an impact
on death-penalty appeals nation-
wide. Now, legal experts are de-
bating the effect his execution
Wednesday morning will have on
death-row inmates, including the
112 men in Georgia.

Some lawyers are saying the
number of executions will: in-
crease dramatically; others ex-
pect little change. vm

“It’s a horrible thought that
now the floodgates have been
opened for more executions co
take place,” said Decatur attor-
ney Mike Mears, who represent-
ed McCleskey during his final
appeals Tuesday.

McCleskey became the 15th

- person to die in the state’s elec-

tric chair since capital punish-
ment was reinstated in 1984. He
was sentenced to die for the 1978
shooting death of Atlanta police

Officer..Frank Schlatt, -who
. walked in on a robbery attempt

at a Marietta Street furniture
Store... oh

Last-minute appeals to five
state and federal courts led to
seven stays and eight hours of
delays before McCleskey finally
died at 3:13 a.m,

Bob - Stroup, another of
McCleskey’s attorneys, does not
think his client’s execution will
have an impact on when other in-
mates are sent to the electric
chair. “The execution is not the

» landmark; the landmark is the
‘horror of April, ”he said. —

High court limited appeals

In April, the U.S. Supreme
Court ruled in the McCleskey
case that death-row inmates had
been allowed too many appeals
and set new standards that are
expected to shorten the tinie be-
tween the conviction and the date
the sentence is carried out. -

“When McCleskey’s case was
‘denied an appeal in 1987, we saw
three or four executions in Geor-

3 gia over: the next couple of

Constr TUT on,

AAA)
9-16-1991 CD- 35

2th

74

Warren McCleskey admitted i in="'
volvement in the ’78 holdup but ‘de-
nied kiling Officer Frank Schiatt, *

months,” said George Kendall,

director of the Legal Defense
Fund of New York. “But that
pace was not kept up in 1988 or
1989. I don’t think we’ll see any
major increases.”

But Mr. Kendall and others
are expecting a natural increase
in executions over the next year.

“There are larger numbers of
people, more than ever before,
whose cases have reached the
end of their legal ropes,” he said.

Georgia Attorney General
Michael J. Bowers agrees. that
the limiting of appeals will lead
to several executions being
moved up, but he doesn’t see an

“avalanche of executions.”

“The ruling in the McCleskey
case earlier this year will cut
years off the appeals of several
death-row inmates,” he said.
“We would have been able to ex-
ecute McCleskey in 1987. It’s go-
ing to have a significant i impact.”

University of Indiana law
professor Joseph Hoffman, a na-
tionally recognized death-penal-

_ ty expert, believes Mr. Bowers, a

strong capital-punishment pro-
ponent, will be able to use the
“political momentum” from
McCleskey’s. execution to push
other death-penalty cases to'a
finish. .

“The political [maneuvering]
will now play a bigger role than
the legal maneuvering,” Mr.
Hoffman said. “It may be that
with this being a very celebrated
case, we may see three or four
more cases in rapid succession.”

14


‘ nt :that generally the people living W. B. Partee, Atlanta

. F 5 .
ee Rest ee ee

oo
Ay

Ce Ree Uy

as

sca

: aa ‘guage serial, an how is inte back in jail.’
set “| pronounced?, fo eats ;

Ck oe
ecererecs

ees

ee
bute.

foes
a ae

ee oe ee
=

see ©
rare ete

= 2 as at,

ees
eee es. =
Te

ed

t -MeCleskey robbed. the furni-73 voluntary, separations, we'll be’:

# -sentences an
ie Sears hyd

ge Pc Coyitelactiin

re siti

oe ad ss RPK *e a “face }
Do 0 you have a question about |

‘the news - ~ local}: national or.
international? Staff writers Betty
Parham and Tom Bennett will try:

to get an answer for you. Call...
71222-2002 on’a tonedial phone’
“and follow the instructions. oe

sday’s.,... tet seven years. A third, Ben ~ 4

é ut languages spoken. Wright, testified that McCles3":
by Georgia public school stu-' yey. shot the police officer. | 7

400 of them spea Wiig was given 20 years and!

i. Where did this lars “Y) -was released.on parole but i is *

(oa

bari
Me

fie = Is Otis Nixon still dra
7 “ing his pay?:

ris

‘Bill Fletcher, Komeanw

ASS “Pronounced Goo-jah-

4 ‘rati, it is one of more than 20.
: “major languages spoken in In-
3 i dia. There are as many as 1 000.
ae dialects. In 1956, the govern-. ie

-?'ment reorganized the states'so ~

ed for 60 days, without pay. | 6)

oo a: "What other countries. i
have the death penalty?
‘in them would speak the same .\' tO
language. Bombay included * Vogt

.two large language groups, peo- Main the death penalty. Many - seg
‘ple who spoke Gujarati and” “are African nations. Others in-'

‘those who spoke Marathi, ands. _ clude Afghanistan, Bulgaria, -
‘each wanted its own state. Soin’ ~ China, India, Iran, Iraq, Korea,

'1960 the government divided .. Laos and the Soviet Union. No:
‘Bombay int jarat and Ma-, ~ Western European nations use’

f hd capital punishment. - ae. |
harashirae il Gi ‘Amnesty International rei oF

at: Q: Who are mee U. N: ‘inspec- ports that a record number of
. tors? Are they i in the idaeonab he *.: countries abolished capital °

What countries do .they comeé:.... punishment for all offenses i in gg
‘from? »: ates. saith. egy 1990, Among them were © 4 4
gent apt «Czechoslovakia, Hungary, Ire-. i

ria % fa op pret
mae UN. inapectiort teams {" preyed Mozambique, Namibia saps

‘are generally made up of gov- ~ ... In all, 44 countries have ...

’ernment workers recruited ce
‘ from several nations:who take ¢%* , abolished the death penalty, i

‘leave from their jobs wh ile em- : " Seventeen have abolished it ex-*

: ployed by the United Nations. ."*: ie apie
: They do not come from the mili tions have not executed anyone
: tary. Their backgrounds and ar- vin 10 years, ‘¢

; eas of expertise differ depend-." ts Tas
ing, on the nature of a particular. “t: ‘Does the state Employ. ;

: inspection. More than a dozen’! “ees Retirement System have
U.N. inspection teams have * enough money to pay for the By ict
+ been sent to Iraq for different j ‘ ditional pensions resulting MWD
poses Since, the cease-fire.’ . from recent cutbacks in state.
. 2°
' ‘0: i, What. happenel to thels bios ber ppc
“ote men who robbed the furni- a bt eer nenys ‘Vesna
: ture store wi | Warren ae ; ‘a

:: McCleskey?. Bid ees

[7 Dove ocksed Atlanta:

nay ‘Three:men besides:

cae

sei

eels
oe ee etd ae ata ae

=
orate

iy

cona*

> As Yes it does: Says its di-'-'\*

rector, Rudolph Johnson. “We iat
have in excess of $4 billion. Un-
less we get over 400 or 500 in-*

, ture store. Two received life,.); ‘able to handle it without any ad

“Debbie Gillitane, Trion, Ga.’ data |
“Otis Nixon was suspend:, a

ae peri if

As. iNinetytwo Colntries re-' nf +f

Peet ai aeanee mtsipismenas ve bo

‘eat

ay Hits S

were paroled. af j ee Revie he said.’ ’ Pag |

—

ae T=


“-wigeds of the’T-shirt produced by

ve the family of the man McCleskey _
wpalsiconvicted of killing, “Capital ©

is. Lee ‘for the policeman Frank Schlatt during

ment

a ah

: justice for Warren McCleskey?.

‘Ti Wayne Snow, chairman of the © recovered. All the prosecution

‘state Board of Pardons and’ Pa-

rblés, explained the’ board’s re-.

- fiisal to’ ‘grant: McCleskey: clem-

eticy by saying that “the prepon-
derance of all the evidence in our’
filétindicated ne was the trigger’

person.” ‘
ohtfhat's not very. impressive:
criminal conviction is sup-

baba to find guilt “beyond a rea-

kable doubt.” Earlier’ this
year, Hans Krause was denied
the‘right to inherit his wife’s es-

taté! because ‘a jury found:that a>

preponderance of the evidence
indicated’ he had. killed her.
That’s the standard of proof in a

_ civil case. But criminal charges

Have. never been filed against
Mn. Krause because prosecutors

bélieve he can’t be proved guilty.

‘béyond a reasonable doubt.
| Min fact, the case: record cre-

“Ses real-doubt that McCleskey

' fired the gun that ‘killed, Atlanta

Gusti TT Ted, (tart Go 9/26 |194!

3 wn, aera rely feelin that. ,
: Gare in his” heaven and all’s
‘right ‘with’ ‘the’ world. In. the,

The. "ueation howe ver, re-"
s: Was: capital: punishment’ :

a furniture-store robbery. 13
years ago. There was no eyewit-
ness testimony to the shooting;
the’ murdef ‘weapon was never

had going for it was McCleskey’s |

“confession” to Offie Evans, a

fellow prisoner who had made a.
career as a police informant.

Early in the appeals process, .

Evans testified that a detective
had promised to intervene in his
behalf if he testified against
McCleskey. Evans also hap-
pened to be a close personal

friend of Ben Wright, a co- con-.

spirator in the robbery who was
at least as plausible a murder
suspect as McCleskey. (Wright,
who also testified against

McCleskey, received 20 years.)
The jury was never told the:

facts. about Evans. Two ‘jurors

swore this week that had they.
known he.was a police plant, they

would never have voted to sen-

tence McCleskey to death.”

- A federal judge twice found
that McCleskey' was unjustly
convicted. His findings were

Tbpereined not on ‘the merits, bik”

_- on procedural grounds having to

do with how appeals can’ be

raised. It’s no exaggeration to

say that McCleskey was the vic-
tim of a federal court system that

no longer wants. to deal. with »

death-penalty appeals. .

Mr. Bowers, whose devotion:
to the death penalty may or may ©
not be related to his interest in -
higher. office, declared, “The
problem here is we wait so long, .
_we forget the tragedy, the horror,
and the-barbarity of the crime in.
_the first place.”

Anyone who’ followed the:

news coverage or tuned in to ra-.
dio call-in shows over the past |
week knows this is not the prob-
lem here. When an execution is
imminent, the crime comes back
to life in all its horror. It’s the de-
tails of the record — the evi-
dence, the character and credi--
bility of the witnesses — that re-
main a blur of claims and
counterclaims. ;
The problem here is that the
man condemned to die becomes
a symbol of all the killers who af-
flict our society. Capital punish-
ment gives us the opportunity to
take ritual vengeance on them, to
kill the killers, to win one for our
side. It’s an emotional release
that has its uses. Let’s just not
confuse it with justice. 0’

Mr. Silk is a Constitution edi-

torial writer.

AD


Both sides of debate agree:
~ Executions aren’t pleasant

ts By Bill Montgomery

\' Staff writer

»' The lawyers who struggled to stop
~~ Warren McCleskey’s execution conceded
'- Wednesday that the nation’s highest court
and Georgia public opinion support capi-
-tal punishment, but they insist it is still an
atrocity.

Attorney Steve Bright said the seven
‘stays of execution in the condemned kill-
er’s last eight hours of life drive home “a
‘continuing lesson we should be learning:
There’s no good way to kill someone.”

“In the nation at large, we’ve had elec-
tric chairs misfire, lethal injections gone
wrong, gas chambers that didn’t take ef-
‘fect so the prisoner kicked around for a

/ while,” said Mr. Bright, head of the South-
ern Center for Human Rights in Atlanta.
-“Put all this together and it shows that this
-business of the state killing people is gris-
> ly and wrong.”

“s¢ Decatur attorney Mike Mears, one of
Vass sramaen ied s lawyers in the final efforts to

Ya 7-26 “/ 74.

70,

/

ST/

ATL, Ga

stop the execution, said he was chilled by

the U.S. Supreme Court’s denial last year ~

of an appeal concerning a confession
McCleskey allegedly made to a paid infor-
mant authorities placed in the jail.

“The Supreme Court said that issue
should have been raised earlier, and that
seriously limits a defendant’s right to fur-
ther appeals,” Mr. Mears said. “The court
was saying in effect, ‘Well, tough, you’re
going to be executed.’ ”

But Attorney General Michael J. Bow-

ers said Wednesday evening he remains
“comfortable” with the state’s 13-year ef-

’ fort to put McCleskey in the electric chair.

“I’m human, ‘and I recognize that any
execution is an awesome undertaking, not
to be taken lightly by anyone on my staff
or in state government,” Mr. Bowers said.
“We're not doing this for the joy of it, but

‘because the law requires it.” -

Mr. Bowers said the role of the jail-
house informant was found to be of little .
relevance by the courts. :

Greg Foster/Special,

At the Capitol: Brenda Davenport of Atlanta (left) and |
Kim Miller of Marietta learn a stay has been granted.


Stn Francises ;
Ironicle. PDE

Weds Faas 9/

Killer Executed ~~

P| After 13 Years: 5,
On Death Row ”™
2al ea Ow Ed
sculpt
Associated Press reli gio
wiega Jackson, Ga. leuken
drug’ Police killer Warren McCles- _ Mr.
Ship- key was executed early today.He Philad,
toney. had dodged the death Penalty for sylvani
Norie- 13 years with appeals that led to workec
Other twolandmar Supreme Court ryl- the scu
at he ings, His
, McCleskey died in Georgia’s was in
testi- electric chair at 12:13 a.m. PDT. Art G;
‘iega Federal Judge J. Owen Forres- him fo;
‘the ter late yesterday refused to stop His
lin the execution, However, he delay- the Ph
ef, ed it until early today to allow the the Per
11th US. Circuit Court of Appeals Fine A)
nis- to review his decision rejecting ar- my of I
- tO guments that a State parole official
ry. prejudged McCleskey’s clemency
2ga~ plea. The execution initially had —
‘of been set for 7 P.m. yesterday, Dr
ael The appeals court denied a |
10t stay. Defense attorneys then ap- A}
ar pealed to the U.S. Supreme Court, James ]
ed Which yesterday had voted 6-3 not mer d;
dg- to stay the execution. Health
The high court voted on the Califor;
Eu-  Jatest appeal early today. It reject.. Octobe;
his eda Stay, again by a vote of 6-3,and > pr
tak- McCleskey was put to death, college
Forrester said evidence that homeS
Po the state Board of Pardons and: . complic
Paroles chairman, Wayne Snow, ... Dur
kes prejudged McCleskey’s case was Berkelc
Cid “of a shadowy nature.” 1991, I
McCleskey’s attorneys contend. . §rams1
ed that Snow said before a clemen- drug a
he cy hearing Monday “there would and sex
le be ‘no change’ in Mr. McCleskey’s: pg,
‘iegg Sentence as a result of the upcom-: vice ch;
ps 8 -" ing hearing, and there would be an affairs
"bee execution on: Tuesday,” Offices
__ McCleskey, who is black, was  €2Viro)
~~ sentenced to tie for the 1978 shoot. any

ing death of. white Atlanta Police °

officer Frank Schlatt during a fur: | 4
‘ive  niture. Store:robbery, He.was the, ,4¢

coeds a ON) toi-die: in;,Georgia’s.} , Dr,

‘On * electric; chair;;and the 155th ‘Marj; degree

bik : onwide, since.the Supreme Court » cal'S 4

ate’ | jowed executions to resume in; Corps;

Nd: 1976... oti vid to AORNs! att tery eqyehederg

nd. — Ft tirseay oder aie? TWF Sra ne BEARS rp
a rs rr

tee y mrmy O2 Sire, MOE

Ying

_ | MCCLESKEY LOSES STAY OF EXECUTION: A feder-

al judge has lifted the stay of execution against

yarren McCleskey that has been in place for 12
years. Prosecutors said Friday they plan to go to
court next week to get an execution date set in the

next 60 days. McCleskey, who was convicted of kill-

ing an Atlanta police officer in 1978, apparently ran |

out of appeals earlier this year when the U.S. Su-
preme Court rejected his plea for a new trial. Attor-

neys for McCleskey say their only real hope for re-

lief now lies with the Georgia Board of Pardons and

life in prison. . ae | |
ATLANTA TEEN CHARGED IN cTpoeee a: a.00--

Pafoles, which can convert his death sentence to

Warren
McCleskey


|
“A
¥
ee
4
vat

BOARD HEARS FINAL PLEAS: : While a
_ the daughter of of Officer. Frank” ge

~ shown amily and friends of.
os McCle ey jee a pardon."

yr

‘and of. He man |

* N
“A
oa, |
4

t

phat, Sait ees $3 tte og ce
: Ba ay pe pe ‘ ;
Sg! , Se ae ae

inc has sct
- ferenc 0, announce. the panel’s deci-

ao the last four death row inmates who).

, " Witnesses’ credibility questioned

illing 1 made their, final plea

It has granted clemency to three .~% Wee a ue
Wiping feck Bees Jodie Syaniner looks

- at the: euspapes eh ass about, her: fan,

~ have re‘ uested ite

af

“We are not here to argue the! ‘valid-': ily
ity of the death penalty but whether so-’
ciety will be: better served with: Mr.‘ i
McCleskey. alive or. dead,” Bob‘ Rein-
hardt, one. of ‘McCleskey’ s attorneys,
told the. board. “After reading through |
boxes. ‘of records, we, believe’that the .
_ justice “system. will: make a supreme
mistake by putti g Mr. McCleskey. to.
death.” ie Gers Re

Defense. attorneys ‘attempted: to un-
dercut the. credibility of the’state’s two.
“key. witnesses, both of ‘whom were: in-
formants.:. Two. jurors testified’ they.

QX\

Ss-l)

(C

_\

TAH

4

CU

Coe roned

MeClinssY, Warren, black, 46, elec. GAsP (Fulton Co.) 9/25/1991,

Death row inmate Warren McCleskey, shown here in a 1983 pho-

File
\

to, is contesting a ruling that he made his appeal too late.

Supreme Court agrees to take a look
at Georgia murderer’s latest appeal

The Associated Press

~WASHINGTON — The Su-
preme Court agreed Monday

- to hear an appeal by Warren

McCleskey, the Georgia mur-
derer whose earlier appeal led
in 1987 to an important high
court ruling‘on capital pun-

-ishment.

The court said it will re-
view a ruling that McCleskey
waited too long before mount-
ing his latest federal court
challenge to his state convic-
tion. He is seeking to attack
the use of incriminating re-
marks he made to a police in-

formant as evidence against

him. ae

McCleskey was convicted
of gunning down Atlanta po-
lice officer Frank Schlatt dur-
ing a furniture store robbery
in 1978.) 7) es

The court in 1987 upheld
McCleskey’s death sentence

as it ruled that state death

penalty laws may be valid’

even if statistics indicate they
are carried out in racially bi-
ased ways.

The 1987 ruling dashed
what many death penalty op-
ponents considered to be their
last, best chance of saving
hundreds of the more than
2,200 men and women on
death rows across the nation.

Acting on McCleskey’s
newest appeal, a U.S. District
Court judge had ordered a
new trial after, ruling that the
‘jailhouse confession” had
been unlawfully obtained.

But the 11th U.S. Circuit
Court of Appeals threw out the
judge’s ruling, stating that
McCleskey had waited too

long to raise the challenge.

The appeals court also ruled
that if use of the incriminating
remarks violated McCleskey’s
rights, the violation amounted
to “harmless error.”

RAMA LL KA SAL STE ERT RY YF NTE ER, PAT

Che Atlanta Journal AND CONSTITUTION

~

TUES., JUNE 5, 1990,,

ee fe SE ee Oe Oe ee ee

St een i ne ee mee RN sheer ta EOE

It's Easy To Believe In The Death Penalty--
All You Have To Do Is Ignore The Facts

Fact #1
Murder rates are lower in states that have abolished the death penalty.

The FBI Uniform Crime Reports Division publication, "Crime in the U.S." shows that states which
have abolished the death penalty averaged 4.9 murders per 100,000, while states still using the
death penalty averaged 7.4 murders.

Fact #2

Innocent people are executed.

A recent national study of murder convictions since 1900 found that in 326 cases, homicide was
attributed to the wrong person. Of these innocent people, 23 were executed.

Fact #3

Many family members of murder victims don't want the death penalty.

Victim's families often express, publicly or privately, their opposition to the death penalty. One
victim's father said, "It won't change what happened to my son. Two wrongs do not make a
right." The death penalty prolongs the agony of the victim's family by requiring them to struggle
through years of legal battles over a celebrated crime. And it implies that our duty to the survivors
of murder is finished once another life is taken.

Fact #4

The death penalty does not deter crime.

In no state has the number of murders diminished after adoption of the death penalty. Comparing
states with similar population densities, murder rates in states that have the death penalty are no
different than in those that do not. Executions may even encourage violence by signaling that it's
okay to kill. A 1980 study by Northeastern University of 700 executions in New York found that on
average, the brutalizing effect of an execution resulted in two additional murders. Statistics show
that police and prison guards are no safer in states with the death penalty than in those without.

Fact #5

The death penalty is arbitrary and discriminatory.
Only one out of 100 convicted murderers is sentenced to death. Half of all death sentences are

overturned on appeal. Only rarely can the crimes of those who are killed be distinguished from
those who are spared. Instead those convicted of the death penalty tend to be poor, people of
color, and have victims who are white. Most of those on death row were unable to afford private
legal counsel. Since 1972, 85% of executed prisoners were convicted of killing white persons. . Yet
in that same period, almost half of all homicide victims were black. And blacks who kill whites are
up to 11 times more likely to be given the death penalty than blacks who kill blacks. The last time
in the U.S. a white person was executed for killing a black was in 1944.

Fact #6

Every western democracy except the United States has abolished the death
penalty.
The only other industrialized nations that still have the death penalty are South Africa and the

Soviet Union. Since abolishing the death penalty in 1976, Canada has witnessed a lower murder
rate.

Fact #7

Public opinion favors life imprisonment without parole to the death penalty.

Poll after poll reveals that the vast majority of respondents prefer life imprisonment without parole
and restitution to the victim's family over the death penalty. Endorsing the death penalty is a
popular way for politicians to appear "tough on crime,” however, the death penalty has been proven
worthless as a solution to the problem of violent crime. States whose resources and energies are
not drained by the use of capital punishment have more of those resources available to develop
effective methods of reducing violent crime.

Fact #8

The death penalty is more expensive than life imprisonment

without parole.

Because of the irrevocable nature of the sentence, trials for capital punishment cases take much
longer and are more costly than noncapital murder proceedings. Jury selection takes days or
weeks; sentencing must--by law--occur in a complicated second trial; appeals are more numerous
and more successful. The time between initial proceedings and execution often runs 10 years or
more. Some appellate courts, like California, spend half their time on capital cases. Court costs for
Texas’ 26 executions between 1980 and 1986 totaled $183 million--an average of $7 million each.
In Massachusetts, the average automatic life imprisonment without parole sentence costs about
$900,000 per conviction. Prisoners on death row simply wait. Those with sentences of life
imprisonment work; in fact, if paid a wage commensurate to their work, many would be self
supporting.

(le aa hea gehen alli — poor me
2 eee ey he oe eS Or BS) |

ra a

Lary

ONE INNOCENT |;
PERSON
AND WE'RE ALL
GUILTY
OF MURDER.


et ct GO em

Many saw the 1987 decision as a sign
chat broader civil rights laws might be in
jlanger. And they were right. At every turn,
-he Justice Department and the Supreme Court
iave signaled their frustration with equal
opportunity, with affirmative action, with
cemedying centuries of racism. And when it
somes to stripping away basic rights, what
setter place to start than among the
sondemned--those least likely to garner
sympathy as the ax falls?

Stunned, angry and facing the imminent
execution of their client, McCleskey's
attorneys went back to the case files, poring
over prosecution documents turned over to
them for the first time.

As they reviewed the new materials, they
learned that the prosecution had made a deal
with one of the trial witnesses, Offie Evans.
In jail facing escape charges, Evans had
testified at McCleskey's trial that McCleskey
had confessed to shooting Schlatt during the
robbery.

At the trial, the prosecutor and Evans
denied any deal had been cut to secure Evans'
testimony. Ten years later, the prosecutor's
notes revealed that Evans had intentionally
been placed in the cell next to McCleskey's
and coached on getting a. confession from him
in return for lenient treatment on his own
case. Furthermore, it was clear that the
arrangement between the prosecutor and Evans
had been intentionally hidden from the
defense team.

Once again, McCleskey took his case to
the Supreme Court. Once again, the court
chose to overturn, rather than uphold the
law.

The court ruled 6-3 that McCleskey
should have raised the claim earlier and was
now barred from offering new evidence.
McCleskey's lawyers should have known about
the deal, Justice Anthony Kennedy wrote for
the majority, despite denials from both the
prosecutor and Evans and the failure to
provide the defense with any evidence of the
arrangement until 1987. Even if it was
misleading, said the court, Evans' testimony
was "harmless."

McCleskey's legal team, frantically
trying to forestall an execution, met with
two of the jurors in McCleskey's trial. Had
they questioned the credibility of Evans'
testimony? Had the prosecutor's misconduct
in concealing Evans' deal affected the jury's
sentencing of McCleskey?

The jurors' responses were unequivocal.
Yes, they had spent considerable time
debating Evans' believability. His was the
only testimony that fingered McCleskey as the
shooter. :

Jurors were reluctant to sentence
McCleskey to death, the two said, unless they
were sure he had actually killed Schlatt.
However, assured by Evans and by the
prosecution that Evans had nothing to gain by
testifying, and without any signal that the
defense team believed him to be an informant,
the jurors believed his account. If the jury
had known the whole story, they would not
have brought in the death penalty, the two
jurors said.

The prosecutor's misconduct was far from
harmless--it was fatal. But the Supreme
Court was uninterested.

At a hearing before the Georgia Board of
Pardons and Parole just 24 hours before the
execution, the board heard the two jurors, |
who asked that the death sentence be set
aside. "I believe if you take a life, death
is the right punishment," juror Robert
Burnette told the New York Times after the
hearing. "But," the 49-year-old postal
worker continued, "when you take that
person's life you. have to be sure beyond a
shadow of a doubt that person committed the
crime, and I don't feel that way about this

YW

[=

The board also heard evidence that one
of McCleskey's co-defendants was the likely
killer--testimony that had been brushed aside
during the trial on the strength of the
jailhouse informant's story. But despite the
jurors' pleas, the board turned down the
clemency request.

At the scheduled execution hour, 7:00pm,
September 24, McCleskey's case was still ina
flurry of last-minute appeals at various
courts. Over the next several hours,
McCleskey received seven stays of execution
before finally being put to death in the
darkness of any early Georgia morning.

People in this country don't like to
stick up for murderers. But no one is
suggesting that we should. The Supreme
Court's stunning decisions in McCleskey's
cases go way beyond the narrow parameters of
death penalty jurisprudence. They are about
the court's readiness to scrap any and all
laws that might get in the way of the
electric current surging toward prisoners on
death row. They are about reversing long-
fought victories that make Black lives as
precious as white lives, that require
prosecutors to follow some rules when seeking
to take the life of a convicted criminal.

The court's fetish for the death penalty
is disturbing and ghastly enough. That their
fetish is also dismantling other aspects of
the law is appalling.

The Supreme Court's decisions in
McCleskey have not gone completely
unanswered. In 1987, civil rights
organizations drafted the Racial Justice Act,
which would have specifically allowed death
row prisoners to challenge their sentences
based on evidence of a statistical pattern of
discrimination. Introduced in Congress the

(continued on page 11)


RIGHTS continued from page 4) i
?ollowing term, the measure continued to gain
support, passing the House of Representatives
in 1990. But this year the House yielded to
veto threats from the president and removed
-he fairness provisions from the anti-crime
sill passed on October 22%

A series of investigations in death
oenalty states has confirmed and illustrated
the racism McCleskey documented in 1987.
These studies point to the deep-seated
influence of race in the criminal justice

system. It is pernicious at all levels. It
is deadly when the end of the line is
execution.

But given the current atmosphere of
toleration for racism and the emotional pitch
of the debate on crime and criminals, claims
of injustice are unlikely to advance very

far.

Instead, the impetus for change must
come from the streets. Citizens should
demand that lawmakers stop manipulating
people's fear of crime and develop programs
to prevent it. Politicians must desist from
seeking to divide voters into a safe, white
"us" and a dangerous, darker "them."

As the 1992 election-season picks up
speed, we can expect to see candidates
selling the death penalty like snake oil in
races for offices from local district
attorney to the presidency. We must reject
the rhetoric and demand useful debate. When

the public stops buying, the salespeople will

stop selling... . ;

"It is tempting to pretend that
minorities 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," now-retired Supreme Court
Sustice William Brennan wrote in his dissent
from the first McCleskey decision. "Such an
illusion is ultimately corrosive, for the
reverberations of injustice are not so easily
confined. . . . The way in which we choose
those who will die reveals the depth of moral
commitment among the living."

Excerpt of a letter from a friend in prison:

This is where I'm going to die, and

I'm hoping that doesn't take too long because

living in fear is just as bad as death
itself. I know you can't really understand
what I'm saying because you've never lived
life in prison. You can't know what day to
day life is like in this place. It is a sad
and terrible thing. I can't even say that
I'm a man anymore because I've forgotten how
a man feels or what his needs are. Instead I
feel more or less like a zombie. I don't
blame anyone for what has happened in my
life. I just wish that someone knew that a
man needs a‘ chance to live again after being
dead for so long.

Name Withheld

(REMEMBERING continued from page 5) F
Warren shared many tnings,

I wish to remember for as long as I live.
said, "Billy, I want you to know that the
Lord has given me all the grace that is
needed in this situation, and far beyond my
own expectation. I never would have dreamed
that I could be here and not be afraid,
falling apart and scared." Warren was far
from being insensitive to anyone's needs.

God had given him an abundance of grace in
order that he would be able to reach out to
others that came to hin, especially to the
members of his family as they went through
this ordeal, and to the many friends that
came to visit with him. Warren expressed his
love for me and his appreciation for all that
we, as brothers in the Lord, shared over the
years.

all of which
He

Our friend and attorney, Jack Boger,
witnessed the actual execution because he
wanted someone in the room who Warren knew.
Even though Jack and Warren had _ previously
talked about and agreed on this, it was not
easy for Jack to do. I thank God that Jack
was there. The words of Jack Boger will
never fail to provide further comfort,
inspiration and encouragement for me.
talked with him a few hours after the
execution. He said, "Most people would think
that I would be sad because of Warren's
execution. But to see how God was moving in
his life as they put him through the entire
ordeal--being put into the chair, taken out
of it, and then put into it again--where most
others would have broken down, Warren did not
waver in his faith. Warren remained noble, ~
and I am proud to have been his friend."

I

Warren said to me, "Even though the
State is about to kill my physical body that

‘will not stop the truth from going forth.

Trying to erase the name of McCleskey will

“not end the fight against the evil of capital

Cs]

44

punishment. The fact of the matter is this:
because the State has used such illegal
methods to put me on death row, and because
it took years for it to come to light, the
people of the country will and should be
outraged about how their 'good and just'
system works for all people." We agreed that
if there was ever going to be any real fight
in this new age of government control it must
come from the people. o


eee rn ee ee re em ee “agree

Time

To

The state of Georgia planned to execute
Warren McCleskey on Tuesday, September 24, at
7:00pm. On Monday morning we at New Hope
House began to prepare for providing
hospitality over the next few days. Lora and
Mary Ruth bought and prepared food, Bill
spent time trimming up the yard, and I
rumbled around from one thing to another
without much reason. I really wanted to skip
what was coming. I tried to steel myself.
Somehow I had to live this week.

Monday afternoon and into the early
morning hours of Wednesday people called to
ask about Warren or about us and to let us
know they cared for us. Sometimes Mary Ruth
answered these calls and before she was __
finished, she had out her handkerchief,
wiping tears away. I envied her. I wanted
to cry, but I didn't.

Tuesday afternoon Becky White and her
month old son Elijah came to the house. They
had just spent their last hours with Warren.
Becky shared through her tears how Warren
continued to live the life of the "peace that
passes all understanding," even the
understanding that he would soon be executed.
I felt calmed by Becky's tears, but they were
not mine.

Murphy Davis and Ed Loring from the Open
Door Community were next to come to the
house. They had seen Warren McCleskey for
what they knew was their last time. Ed and
Murphy visited Warren on death row for nearly

‘ten years. The three of them were family.

Murphy held baby Elijah close, and then she
raised him in the air and said, "What a gift
of hope!" And Ed sat with Elijah on his lap
and told Elijah how fortunate he was to have
such a name and that God would bring Elijah
food in the beak of a bird. And baby Elijah
laughed. Ed told Elijah that because baby
Elijah spoke God's truth, Elijah would suffer
much persecution. And baby Elijah cried.

Time came for Ed and Murphy to leave for
Atlanta to be part of a vigil at the state
capitol. I could see, maybe feel, the lines
on Murphy's face reflecting grief and pain
and anger. I wanted to scream, but it was
not my time.

On Tuesday night the lawyers managed to
gain some time. But at 3:30am Wednesday, a
state official came and told us, "The
condemned was pronounced dead at 3:18." I
regret I didn't shout my "who are the
condemned?" Reverend Fred Taylor, a person
who has experienced much grief and sorrow as
an African American involved in the Civil
Rights struggle, walked away from our group.
Then he stopped and bent over. His body was
shaking as he sobbed very loudly. And I was

Weep

by Ed Weir

very glad that I had spent that night with
Fred. But I did not weep.

Some people left, but a few remained. I
wanted to see the hearse leave with Warren
McCleskey's body. I wanted to tell Warren
goodbye. Twenty minutes later the hearse
went by under the glare of the TV lights. I
said out loud in what had been a very silent
vigil, "Goodbye, Warren. You have been a

good friend to us all. Now you are free." I
said that without crying.

The next morning I got up about 10 and
sat at the computer to write about Warren for
the next New Hope newsletter. I was alone.
Our good friend Howard Johnson from the Deer
Spring Bruderhof returned my call to talk
about another death row prisoner. Howard
asked about Warren, and I talked a lot. Ana
then I sensed my time for weeping had come.
Howard also understood the moment, and he
shortly released me from the phone. Thank
you, Howard Johnson.

And I cried. I lay down on the floor
and I covered my head and I sobbed. I beat
the floor and I pulled my hair and I wept.

This was an important event for me. I

. went through almost the exact same process

two and a half years ago when my close friend
Henry Willis was executed. I now know that
this is God's way of carving Henry and Warren
into my heart. ‘Over the past two years I
have talked to groups and always have
included Henry in that talk. And always I
either have to stop to shed a tear or cry or
be silent. Now that will happen when I talk
about Warren.

I rejoice that God is still willing to
move around in this scarred soul.


Faye Py
eh :

Cop killer executed; case led
to key death- penalty rulings

JACKSON, Ga. (AP) — Convicted
police killer Warren McCleskey,
whose 13 years of appeals resulted in
two landmark Supreme Court deci-
sions upholding the death penalty,

. died in Georgia’s electric chair early

today.

McCleskey was ‘sentenced to die
for the 1978 shooting death of Atlanta
police officer Frank Schlatt during a
furniture store robbery. He was exe-
cuted at 3:13 a.m. EDT after the U.S.
Supreme Court denied the last of his
appeals.

Two of McCleskey’s earlier
appeals led to landmark Supreme
Court decisions, including one this
year that legal experts predicted

would reduce by years the time it

takes to carry out an execution.
McCleskey, 44, spent the hours be-
fore his execution with relatives and

friends in his cell near the electric ~

chair at the Georgia Diagnostic and

Classification Center, 40 miles south |

of Atlanta.

A few minutes before he died, he
asked his victim’s family for forgive-
ness, asked his own family not to be
resentful and called for an end to the
death penalty.

WARREN McCLESKEY ..
Final appeal: denied

ov “0 “pda a eet me ag wit) se “gpa: :

In one e landmark case, McCleskey ©

raised the issue that blacks who
killed whites were more likely to be
executed than whites who killed
blacks. McCleskey was black and
Schlatt was white. The Supreme

Court used his appeal i in 1987 to bar
the use of statistics attempting to
prove race discrimination. =

In April, the high court ruled”
against McCleskey in a decision that

limited the number of times death-

row inmates may appeal.” His law-.

yers had argued that Georgia author-

ities violated his rights by using a’

jail informant to elicit a confession
from him.

However, the issue had not been
raised in earlier appeals. The Su-
preme Court ruled that unless in-
mates can prove they had good rea-
son for not raising a constitutional
issue earlier, and unless their failure

to raise it harmed their ability to

defend themselves, they cane bring
it up later.

McCleskey was one of four “seople
charged with killing Schlatt. Named

-. by .;witnesses as the trigger “man,
_ McCleskey was the only one of the
* four given the death penalty. Two co-
defendants received life sentences,

and the fourth man was sentenced to
20 years. 7

African National Congress’ *Presi-
dent Nelson. Mandela was. among
those who asked that he be spared.

SAN DIEGO TRIBUNE

|
|

=)

|
Tol

AK ASV SF.

/,

Wednesday, September 29, 1991


Oak Land

rrr

(CH)

Tri b hel

High court curbs appeais

44-/ 7.

by death row inmates 7

By Linda Greenhouse
The New York Times
WASHINGTON — A Supreme
Court decision yesterday sharp-
ly curtailed the ability of death
row inmates and other state
prisoners to bring multiple fed-
eral court challenges to the con-
stitutionality of their convic-
tions or sentences.
Ruling 6-3 in a Georgia death
penalty case, the court set a

standard for lower federal :

courts under which a prisoner's
second or subsequent habeas
corpus petition must be dis-

missed except in unusual cir-

cumstances.

The ruling is likely to enable
states to carry out death sen-
tences more quickly. Death row
inmates now often file several
successive habeas corpus peti-
tions, and the average time from
the imposition. of a death sen-
tence until execution is more
than eight years.

Some 40 percent of all death
sentences are overturned as a
result of a federal judge’s find-
ing of constitutional error in the
conviction or sentence. It is not
known how many of these rul-

ings come in second or subse- .

quent habeas corpus petitions.
Habeas corpus is the means by

which state prison inmates may »

bring their constitutional claims
before federal judges. In the fed-
eral statute governing habeas

~ joined by Chief Justice William:
'H. Rehnquist and by Justices By-

corpus, there is no limit on the
number of petitions that inmates »

‘ean file. .

But a judicial doctrine known |
as “abuse of the writ” has pro-
vided a practical limit of several
petitions, because petitions mak-
ing repetitive arguments or rais-
ing new issues that could easily
have been introduced at.an ear-
lier point have been dismissed. .

What the court did yesterday,
in an opinion by Justice Anthony
M: Kennedy, was to redefine the
“abuse of.the writ” doctrine to

make it substantially easier for

state prosecutors to.attack as an_
“abuse of the writ” all habeas

corpus petitions after a, prison- —

er’s initial one.) 2) 2721
Observing that “perpetual dis-

tions disparages the entire crim-

inal justice system,” Kennedy |
predicted the court’s new stan-
dard “should curtail the abusive
petitions thatin recent, years
have threatened to undermine.
the integrity of the habeas cor-

pus process.")/)°)) (Ne?

The majority. opinion’ was

ron R. White, Sandra Day O’Con- ©
nor, Antonin Scalia and David H.
Souter, | Y FRAN ER ol
- Justice Thurgood Marshall
dissented in an opinion that Jus- .
tices Harry A. Blackmun and
John Paul Stevens joined. —

The decision, McCleskey vs.

“Zant, accomplished much: of.
‘what Rehnquist tried to do last

year in a personal campaign to
persuade: Congress to amend the
habeas corpus statute. His effort

- failed. —

; Referring pointedly yesterday

to this recent history, Marshall

_ said that “the majority exercises

legislative power not properly

belonging to this court.”

¥ reconsideration of failed at-
“tempts to amend existing stat-

“It is axiomatic,” he said,

“that this court does not function

as a backup legislature for the

utes."/%

- une the new definition of ,
_ “abuse of the writ,” a second
respect for the finality of convic- fnaee

fered ‘“‘actual prejudice” from |
“the constitutional error he was
- endeavoring to prove.

Tine

Thurgood Marshali
‘A backup legislature’

new argument will be dismissed -
as abusive unless the inmate can °

show there was “cause” for not
raising it earlier and that he suf-

cond or |. Kennedy said the fact that the»
Subsequent petition raising a inmate’s lawyer failed, through

Anthony Kennedy ar

‘Curtail abusive petitions’
legal error or bad judgment, to
raise the issue earlier would not
constitute “cause” and would not
save the new petition from ‘dis-
missal unless the lawyer's. be-
havior was so deficient as to
amount to “constitutionally inef-
fective assistance of counsel,” a
difficult standard to meet.


Georgia
Prose Cua er
Accused —

Death case by claws : |
_key evidence was hidden

ea Cox News Service oS
Washington |

Georgia prosecutors hid key.
evidence about a tainted jail-
house confession to obtain a con-
viction in a 1978 murder trial, a
lawyer for a condemned Atlanta
man told the Supreme Court yes-
terday. .

“This is a case about state mis- _
conduct in a criminal trial” and a ©

subsequent cover-up, said John

~ Charles Boger, attorney for War-

ren McCleskey, a pe death
row inmate.

“We do not believe this i is acase

of state concealment and lies,”

countered Mary Beth Westmore-
land, an assistant attorney general
of Georgia.

The justices heard oral argu-
ments yesterday in the case, War-
ren McCleskey vs. Walter D. Zant,
superintendent of the Georgia Di-
agnostic and Classification Center.

Beyond the questions of wheth-
er prosecutors and police withheld
evidence and wrongfully obtained
a murder conviction, the case
touches on the emotional issue of
death sentence appeals — when to
cut them off and carry out an exe-
cution.

ry wa Ca

ve

‘ .

It was more than 12 years ago,
May 13, 1978, when the case began
with a robbery of the Dixie Furni-
ture Store in Atlanta. Four armed
men came into the store and forc-
ed customers and employees to lie
face down in offices. A worker
tripped a silent alarm, and Atlanta

policeman Frank Schlatt answer-
ed the call.

When. Schlatt. entered the.

store, one of the robbers shot him
dead. None of the employees or
customers saw who did the shoot-

» ing. ;
Within days, Warren McCles-
. key was arrested and confessed to ©

police that he had participated in

the hold-up. He denied SROOHDE :

the policeman, however.

.,.. McCleskey was put in solitary |
~ confinement in the Fulton County. -

jail while awaiting trial. Police put

an informant, Offie Evans, in the

next cell. Evans later testified that

~ McCleskey had admitted the kill-

ing.

After numerous legal proceed-

ings, however, Boger said defense

lawyers discovered in 1987 that Ev-
ans had made a 21-page statement

to police in 1978 that cast the so-cal-

led jailhouse confession in a new
light. The informant said he had
pretended to be the uncle of a co-
defendant and otherwise lied to
gain McCleskey’s trust.

McCleskey’s attorneys said
prosecutors and police had with-
held this statement from them and
appealed the earlier decision. A
federal judge ruled for McCleskey
and threw out the conviction.

A er Bes a

At his trial, Westmoreland said, :
_ McCleskey denied taking part in
“the robbery and admitting to Ev-
‘ans that he was the. triggerman.
- But he was convicted and sentenc-. |
‘ed to die in the electric chair.


ray
i

ane

TIMES

By David A. Kaplan

ongress, which is on the

verge of drastically cur-

tailing Federal appeals

by death row inmates,

might first want to con-

sider the strange case

of a condemned killer, Warren

McCleskey — if it cares at all about
fairness.

Like a nightmare that runs in in-
stallments, Mr. McCleskey’s case is
once again haunting the Justices of
the U.S. Supreme Court. Surprisingly,
and without explanation, the Court
earlier this month agreed to hear his
latest appeal in the fall, once more
forestalling his electrocution by
Georgia. The little noticed case is the
latest and best illustration of the
perils of restricting defendants’ ap-

David A. Kaplan is the legal affairs
editor of Newsweek.

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Limits on
appeals
are unfair.

pellate rights.

Three years ago, Mr. McCleskey
was the subject of one of the most im-
portant capital cases of the 1980’s.
Armed with overwhelming statistical
evidence that Georgia imposed the
death penalty far more readily on the
killers of whites than of blacks, Mr.
McCleskey’s lawyers argued that the
system was capricious. (Mr. McCles-
key is black, his victim was white.)
Mr. McCleskey, they maintained, de-
served no more than a life sentence.

But in a 5-4 ruling that enraged the
civil rights community, the Court

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threw out the claim and sent him off
to die. The Justices said that, while
the evidence of discrimination might
be overwhelming, an inmate would
still have to prove that the jury that
sentenced him was biased — a virtu-
ally impossible standard.

Five days before Mr. McCleskey’s
date with the chair in July 1987, how-
ever, his lawyers discovered that
prosecutors years earlier had vio-
lated his constitutional right to coun-
sel by planting an informant in an ad-
joining cell. His lawyers hadn’t clev-
erly saved this bombshell until the
eve of execution. In fact, they sus-
pected a plant only after inspecting
court records that were released re-
cently in Fulton County in response to
a change in Georgia’s open-records
law.

The new claim was not just some
technicality. Without the informant’s
statement implicating Mr. McCles-
key as the trigger man during a 1978
robbery, Georgia prosecutors might

Killing the Rights of the Condemned

not have had enough evidence to seek
the death penalty. Mr. McCleskey,
like his co-defendants, would now be
serving a long prison term.

A Federal district judge agreed
with Mr. McCleskey: He repri-
manded the prosecution and ordered
a new trial.

Mr. McCleskey never got one. The
state went to the Federal appeals
court in Atlanta, which reinstated the
conviction. Mr. McCleskey, the court
held, should have raised the inform-
ant issue during his first round of ap-
peals, in 1981. Reasonable enough —
except that his lawyers had no reason
at that time to suspect the violation.
So Mr. McCleskey again petitioned
the Court.

The Justices’ willingness to review
the case doesn’t necessarily mean
that they agree with Mr. McCleskey’s
claim. But it’s certainly an acknowl-
edgement of credibility. And that is
quite a concession from a Court in-
creasingly irritable over protracted


for a long time, J travelled He curonp
road, And J fully accept tha lite Senteua J
received for armed rot bery . Bot ID ddut shot
Officer Sthldt, amd 3 donut deseve fo ave.

-- Warren McCleskey, Death Row,
Jackson Diagnostic and Classification
Center, Jackson, Georgia.

PAUL, MOORE, JR.

..
May-June 1987

Dear Friend:

We urgently need your help. A black man's life is hanging in the
balance and, in the words of Supreme Court Justice Brennan, "We ignore
him at our peril, for we remain imprisoned by the past as long as we
deny its influence in the present."

Warren McCleskey and three other men robbed an Atlanta furniture
store in 1978. A police officer was shot and killed. Warren claims he
didn't pull the trigger, but a jury -- deprived of crucial evidence
withheld from them by the State of Georgia -- decided otherwise, and
sentenced him to death. While in prison, he has become a religious man
and accepts the justice of his life sentence for armed robbery. But he
continues to insist that he did not shoot the police officer.

When McCleskey's case reached the appeal stage, LDF (the NAACP
LEGAL DEFENSE FUND) took his case and commissioned an exhaustive study
which turned up overwhelming evidence that race plays a role in deciding
who gets death in Georgia.

Despite this evidence, on April 22, 1987, the Supreme Court

refused to grant relief. Justice Powell, writing for the five-member
majority, concedes that discrepancies in death sentencing in Georgia

(continued)

correlate closely with race, but says such discrepancies "are an
inevitable part of our criminal justice system."

Julius L. Chambers, head of LDF, condemned the ruling as ranking
in infamy with Dred Scott --

Dred Scott, a pre-Civil War Supreme Court decision, ©
sent an escaped black man back into slavery;

But this case, in the enlightened 1980s, is sending
a black man to the electric chair.

No one claims that Warren McCleskey is innocent: he participated
with others in an armed robbery. But we don't believe he deserves to
die as the victim of Georgia's racial roulette: Out of 16 Atlanta
holdups in a seven-year period where a policeman was killed, McCleskey
is the only man condemned to die.

Statistics indicate that, if he had been white -- or if the
victim had been black -- Warren McCleskey would almost certainly have
faced a long prison sentence, not death in the-electric chair.

You don't have to be a lawyer or a statistics expert to know that
there's something wrong in Georgia: An authoritative study .documents
that killers of whites in that State are four times more likely to get
the death sentence than killers of blacks. Not only that, but blacks
charged with killing whites are sentenced to death at seven times the
rate of whites charged with killing blacks.

To the NAACP Legal Defense Fund, this study proves that the
death sentence was imposed on Warren McCleskey in a highly capricious
application of Georgia law.

Cruel and unusual punishment? Certainly.

Yet the Court's response was chilling. As the enclosed New York
Times editorial puts it, they voted "Yes" to "Discrimination in Death."

The decision is nothing less than frightening. Maybe it suits the
mood of this country right now. But I hope you don't endorse it. In
the words of Monsignor Daniel F. Hoye, General Secretary of the U.S.
Catholic Conference, "The evidence submitted in the McCleskey case
strengthens our conviction that the death penalty is frequently applied
in an irrational and discriminatory fashion....We believe that capital


—— al
5 ———

342 890 FEDERAL REPORTER, 2d SERIES

jury’s recommendation of life imprisonment
when balanced against the several aggra-
vating factors. The supreme court deter-
mined that the jury was made aware of the
victim’s reputation for violence, Lusk II,
498 So.2d at 905, and that the jury’s recom-
mendation ‘was not based on any valid
mitigating factor discernible from the
record.” Lusk I, 446 So.2d at 1043. That
court further determined from a review of
the record that the trial judge ‘did not
ignore evidence presented by Lusk in miti-
gation,” but found it “clear that the trial
judge did not believe that said evidence in
its totality rose to the level of mitigation in
Lusk’s case.” Jd. The state supreme
court thus held that the dictates of Tedder
had been satisfied.

The state trial court acknowledged that
it considered the mitigating evidence of-
fered by Lusk in his trial, as did the Su-
preme Court of Florida. This court may
examine the application of Florida’s jury
override scheme, Parker v. Dugger, 876
F.2d 1470, 1474 (11th Cir.1989), but we may
not second-guess the state courts regard-
ing whether the trial court “complied with
the mandates of Tedder.” Jd. at 1475. It
ig not our function to decide whether we
agree with the advisory jury or with the
trial judge and the Supreme Court of Flor-
ida. Our review, rather, is limited to ascer-
taining whether the result of the override
scheme is arbitrary or discriminatory.
Spaziano v. Florida, 468 U.S. 447, 465, 104
S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984).
Lusk contends that we should grant only
limited deference to state override proceed-
ings. On the contrary, to the extent that
those proceedings do not produce an arbi-
trary or discriminatory result, the Constitu-
tion is not violated, and we will not second-
guess the state courts on a matter of state
law. The state courts concluded that there
were no reasonable bases for the jury’s
recommendation despite the fact that both
the jury as advisor and the judge as sen-
tencer were made aware of mitigating

9. These claims are: (1) that Lusk’s death sen-
tence violated the Eighth Amendment because it
was based on the unconstitutionally vague statu-
tory aggravating circumstance that the murder
was “especially heinous, atrocious or cruel;” (2)
that the Florida death penalty statute improper-
ly shifted the burden of proof to the defendant
to show that mitigating circumstances out-
weighed aggravating circumstances; (3) that

factors. On the facts of this case, we do
not find that the result of the application of
Tedder was arbitrary or irrational.

IV. Conclusion

Because it granted relief as to the sen-
tence on the basis of the jury override, the
district court did not address other claims
asserted by Lusk which challenge his sen-
tence.2 While we could address those
claims, see Lindsey v. Smith, 820 F.2d
1137 (11th Cir.1987), we conclude that a
proper exercise of our discretion in this
case, given the nature of the claims and the
issues presented, is to remand them to the
district court so that the district court may
address them in the first instance. The
judgment of the district court is RE-
VERSED to the extent that it grants relief
on the jury override issue and AFFIRMED
on all other issues. The case is REMAND-
ED to the district court for consideration of
the claims that court has not yet addressed.

O EKEY NUMBER SYSTEM

4ums

Warren McCLESKEY,
Petitioner—Appellee,

Vv.

Walter ZANT, Superintendent, Georgia
Diagnostic and Classification Center,
Respondent-—Appellant.

Nos. 88-8085, 89-8085.

United States Court of Appeals,
Eleventh Circuit.

Nov. 22, 1989.
As Amended Dec. 18, 1989.

Rehearing and Rehearing In Banc
Denied Feb. 6, 1990.

After defendant’s convictions and sen-
tences for murder and two counts of armed

Lusk was denied due process because counsel
failed to review the presentence report with him
prior to sentencing and because the trial court
failed to ascertain whether Lusk had reviewe?
the report; and (4) that Lusk’s Eighth Amend-
ment rights were violated because the state trial
judge believed that he was barred from consid-
ering notions of mercy in his sentencing deci-
sion.

robbery were affirmed b
5 preme Court, 245 Ga. 10
‘defendant petitioned for
ef.: The United States
e Northern District of
V-1517, 1:87-CV-1517
ester, J-, granted relie
‘and appeal was taken.

Weals, 153 F.2d 877, ¥
United States Supreme
07 S.Ct. 1756, 95 LE
defendant filed secor
The District Court grat
appealed. The Court 0
Circuit Judge, held

Japused writ by deliber
isixth: Amendment Ma
y error based on al

ion was harmless.

1. Habeas Corpus ©

‘eral court may decli1
r subsequent habez

‘prior petition. 2
“Rules Governing §
508: U.S.C.A. foll. §
” See’ publicatior
jifor other judici

‘claim already adjuc
beas. petition, wh
‘grounds for relief
_tion is analyzed as
US.C.A... § 2244
§ 2254 Cases, Ru
Ҥ, 2254,
*. ; : See publicati
“for other judi
=> definitions.

Semigert

_ 33.: Habeas Corp
=" State has bt
beas petitioner h
_ Governing § 225
GA. foll. § 225


punishment under these conditions is surely 'cruel and unusual punish-
ment'."

I hope you'll help the Legal Defense Fund attempt to save Warren
McCleskey's life despite the Supreme Court decision.

By signing the enclosed Memorandum for Color-Blind Justice, you'll
send a clear message to Georgia's State Board of Pardons and Paroles,
the officials who still have the power to grant clemency to Warren.
You'll tell them that as long as there is a strong possibility that race
played a role in his sentencing, basic human decency demands that his
life be spared.

If you sign the wanooents and put it in the enclosed envelope, -

I'll see to it that it is delivered to the State Board, along with the
memos of other Americans who steadfastly oppose blatant injustice.

As Justice Brennan put it in his memorable dissent: "The way in
which we choose those who will die reveals the depth of moral commitment
among the living." 3

Won't you proclaim your own commitment by signing the Memorandum?
And, of equal importance, won't you help the NAACP Legal Defense Fund
continue the struggle against the lingering -- but deadly -- racial
prejudice that put Warren on death row?

We're defending dozens of death row inmates whose sentences are
tainted by racism. When you enlist in LDF's battle in the courts for
McCleskey and others, surely you will help save lives.

And we hope to redeem the blacks who are at the bottom of
American society from the hopelessness and cynicism which can lead to
a life like Warren's. That is why so much of the Legal Defense Fund
program concentrates on opening channels for equal education, decent
housing, and employment and upgrading on the job.

But we're a non-profit organization, and we can't do this vital
work without the help of concerned citizens like you.

Won't you take two steps towards creating a society in which all
people are treated equally? Please sign the Memorandum for Color-Blind
Justice and enclose a tax-deductible check (payable to NAACP Legal

(continued)

Defense Fund) for $25, $50, $75, $100, $250, $500 -- whatever you can spare.

Help the Legal Defense Fund to protect Warren McCleskey and thousands
of others from the brutal racism that still exists in this country.

Sincerely yours,

Paul Moore, Jr.
Chairman

P. S. A man's life is at stake. Please take a moment to fill out the
Memorandum for Color-Blind Justice and send it with your tax-

deductible check in the enclosed reply envelope. Thank you.

Harry Belafonte

Saul Bellow

John C. Bennett
Lerone Bennett, Jr.
Viola W. Bernard
Leonard Bernstein
Hans A. Bethe

Julian Bond

Henry T. Bourne
George P. Brockway
Yvonne Brathwaite Burke
Helen L. Buttenwieser
Diahann Carroll

Contributions to:
P.O. Box 13,064
New York, 10277

IN SUPPORT OF
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
99 HUDSON STREET, NEW YORK, N.Y. 10013/Telephone (212) 219-1900

“Committee of 100” founded by Dr: William Allan Neilson

Members:
James E. Cheek John H. Johnson Eleanor Holmes Norton
Shirley Chisholm Mrs. Percy Julian Richard L. Ottinger
Ramsey Clark Horace M. Kallen Leon E. Panetta
Aaron Copland Ethel Kennedy - Gordon A. B. Parks
Bill Cosby James Lawrence, Jr. Sidney Poitier
Maxwell Dane Max Lerner Joseph L. Rauh, Jr.
Ossie Davis W. Arthur Lewis -Cari T. Rowan
Ruby Dee Sarah Larkin Loening John L. Saltonstall, Jr.
Victoria DeLee John A. Mackay William H. Scheide
Ralph Ellison Horace S. Manges Arthur Schlesinger, Jr.
John Hope Franklin Henry L. Marsh, III Charles E. Silberman
Mrs. A. G. Gaston William James McGill John P. Spiegel
Kenneth A. Gibson Linda B. McKean William Styron
Roland B. Gittelsohn Karl Menninger Telford Taylor
Charles E. Goodell Charles Merrill Robert Penn Warren
John Hammond Arthur Mitchell Robert C. Weaver
Richard G. Hatcher Paul Newman Tom Wicker
Theodore M. Hesburgh Anthony Newley Myrlie Evers Williams
Marilyn Horne
BISHOP PAUL MOORE, JR. JAMES R. ROBINSON
Chairman Secretary

THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND (LDF) is not cont of pad National a ~ ~ nes of neues ——
although LDF was founded by that organization and shares its commitnié BG re TSS ¥:

staff, office and . A copy of the last financial report of THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. + may te obtained ro
writing to The New York State Department of State, 162 Washington Avenue, Albany, New York 12231, or to this office. Please use separate envelope
to request report.

Contributions are deductible for U.S. Income Tax purposes.

er ees ae dees} 9
yee ik See eae

——

Death-row
curbed by high court

6-3 decision forbids
re-filing arguments

‘| pealing their convictions.

‘| tence by filing a second petition

By Dan Freedman

EXAMINER WASHINGTON BUREAU
WASHINGTON — The Su-

preme Court dealt a blow to death- _

row inmates nationwide on Tues-
day, ruling that prisoners cannot
delay execution by repeatedly ap-

In a 6-3 decision, the court ruled
that Warren McCleskey, on Geor-
gia’s death row for 13 years for the
murder of an off-duty police offi-
cer, could not put off a death sen-

with a new argument after the
courts had rebuffed his first. . .-
Writing for the majority, Justice.
Anthony M. Kennedy said that
bringing up in a second petition a
claim that was not contained in the
first was “an abuse of the writ.”
Kennedy was referring to the
writ of habeas corpus, a legal pro-
cedure dating back to English com-
mon law that enables prisoners to
argue before the courts that they
have been imprisoned illegally.
Kennedy’s ruling is likely to cur-
tail the lengthy, complicated ap-
peals that can delay executions for |
a decade or more.
Tuesday’s opinion is a victory
for the Bush administration, which
proposes strict limits on death-row
habeas appeals in its mete bill now:
pending before Co

_ sentence in 1978, McCleskey filed a

“We think the vision will ‘help j

Wiese.

———_|[ * * * RE
Tuesday evening .

APRIL 16, 1991

CLOSING STOCKS

___——séDOW UP 53.71
THIRTY-FIVE CENTS

ed

appeals —

44

bring an added measure of finality
to cases of prisoners who have a lot —
of time on their hands,” said John ©
G. Roberts, deputy solicitor general
in the Justice Department.

~ Tuesday’s ruling appears likely.
to end McCleskey’s roller-coaster

ride through the federal court sys-

tem.
After his conviction and death

eet

[ See COURT, A-15]

3

3st

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oops

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gurg,

Death row inmates
denied delay bids

habeas corpus petition in Georgia,
claiming among other things that a
fellow prisoner’s statements that
McCleskey had admitted the mur-
‘der were improperly obtained.
' McCleskey argued that he had
‘been duped into making incrimi-
nating statements and was entitled
to have had a lawyer present dur-
ing his conversation with the other
‘inmate.
The Georgia Supreme Court re-

| ‘buffed the petition.

McCleskey in 1981 filed a simi-
lar petition in federal court. But
this time he didn’t raise the point
about having a lawyer present dur-
ing the conversation with fellow

‘| ‘prisoner Offie Evans.

The case eventually went to the
Supreme Court, where the justices
in a 1987 landmark decision ruled

| against McCleskey on other

grounds. McCleskey, who is black,
had argued that the death penalty
was racist because in Georgia kill-
ers of whites are more likely to be
executed than killers of blacks. The
slain police officer was white.
Later McCleskey filed a second .
habeas petition in federal court,

.this time claiming a right to have
had a lawyer present during con-
versations with Evans.

_ On Tuesday, the justices ruled
McCleskey was too late in making
this claim.

_ “Perpetual disrespect for the fi-
nality of convictions disparages the
entire criminal justice system,”
Kennedy wrote. “These later peti-
tions deplete the resources needed
for federal litigants in the first in-
stance, including litigants com-
mencing their first federal habeas

_ action.”

Joining Kennedy were Chief
Justice William Rehnquist, and
Justices Byron White, Sandra Day
,O’Connor, Antonin Scalia and Da-
vid Souter.

In a bitter dissent, Justice Thur-
good Marshall called the majority
opinion an “unjustifiable assault”
on the habeas corpus doctrine.

“Without even the most casual
admission that it is discarding
longstanding legal principles, the
court radically redefines” the defi-
nition of what constitutes a proper
petition, Marshall wrote. Joining
Marshall were Justices Harry
Blackmun and John Paul Stevens.

he


robbery were affirmed by the Georgia Su-
preme Court, 245 Ga. 108, 263 S.E.2d 146,
defendant petitioned for habeas corpus re-
lief. The United States District Court for
the Northern District of Georgia, Nos. 87-
CV-1517, 1:87-CV-1517-JOF, J. Owen For-
rester, J., granted relief, 580 F.Supp. 338,
and appeal was taken. The Court of Ap-
peals, 753 F.2d 877, reversed. After the
‘United States Supreme Court, 481 U.S. 279,
107 S.Ct. 1756, 95 L.Ed.2d 262, affirmed,
‘defendant filed second habeas. petition.

The District Court granted relief, and State

appealed. The Court of Appeals, Kravitch,
; Circuit Judge, held that: (1) petitioner
labused writ by deliberately abandoning his
_ Sixth Amendment Massiah claim, and (2)
‘any error based on alleged Massiah viola-
tion’ was. harmless.

1. Habeas Corpus <=898(1)

¥!o) Under doctrine of “abuse of writ,” fed-
i eral court may decline to entertain second
or: Subsequent habeas corpus petition that
as raises claim that petitioner did not raise in
“prior. ‘petition: 28 U.S.C.A. § 2244(b);
Rules: Governing § 2254 Cases, Rule 9(b),
28. US.C.A. foll. § 2254.

27 See publication Words and Phrases
for other judicial. constructions and

as NAR i
2. Habeas, ‘Corpus €=897, 898(1)

ie fSticcessive petition” is one that raises

claim, already adjudicated through prior ha-
es ‘petition, while petition that raises
grounds, for relief not raised in prior peti-
tion is analyzed as “abuse of the writ.” 28
USCA... § 2244(b); Rules Governing
+ § 2254. Cases, Rule 9(b), 28 U.S.C.A. foll.
ay 2254.

an ip Ae A, ‘See publication Words and Phrases

es for. other judicial constructions and
Ay ‘definitions.
airy FEES G sy)

ps Habeas Corpus <899

State has burden of pleading that ha-

eas petitioner has abused the writ. Rules

(Sele § 2254 Cases, Rule 9(b), 28 U.S.
GA. fol. § 2954,

os
jae4

McCLESKEY vy. ZANT 343
Cite as 890 F.2d 342 (11th Cir. 1989)

4. Habeas Corpus €898(2)

Once state has alleged abuse of the
writ, habeas petitioner must be afforded
opportunity to justify his or her previous
failure to raise claim. Rules Governing
§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll.
§ 2254.

5. Habeas Corpus <899

If court determines that habeas peti-
tioner has failed to carry burden of disprov-
ing abuse of the writ, it may dismiss peti-
tion unless ends of justice demand that
court reach merits. Rules Governing
§ 2254 Cases, Rule 9(b), 28° US. CA. foll.
§ 2254.

6. Habeas Corpus <899

Whether second or subsequent habeas
petition is to be dismissed on abuse.of. the
writ grounds is left to sound discretion of
district court; discretion in such matters is
not unfettered, however, and its sound ex-
ercise will rarely permit district. court to
hear petition that clearly constitutes abuse
of the: writ. Rules. Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A; foll. § 2254.

7. Habeas Corpus ¢898(3)

Habeas petitioner abused writ by delib-
erately abandoning his: Sixth Amendment
Massiah claim when he raised claim in ini-
tial. state. habeas: petition, then failed to
raise claim in his first federal habeas peti-
tion, although defendant was unaware of
evidence supporting claim until he filed sec-
ond federal habeas petition; counsel had
some factual basis for raising claim in state
habeas petition, and failed to raise claim in
first federal petition after initial investiga-
tory efforts proved unsuccessful. 28 U.S.
C.A. § 2244(b); Rules Governing § 2254
Cases, Rule 9(b), 28 U.S.C.A. foll. § 2254;
U.S.C.A. Const.Amend. 6.

8. Habeas Corpus <898(3)

Abandoning claim after initial investi-
gatory efforts prove unsuccessful cannot
insulate habeas petitioner from abuse of
the writ. 28 U.S.C.A. § 2244(b); Rules
Governing § 2254 Cases, Rule 9(b), 28 U.S.
C.A. foll. § 2254.


344

9. Habeas Corpus <898(3)

Habeas petitioner and his or her coun-
sel may not circumvent abuse of the writ
doctrine by failing to follow through with
investigation and then later claiming that
claim could not have succeeded earlier on
facts as then known. 28 U.S.C.A.
§ 2244(b); Rules Governing § 2254 Cases,
Rule 9(b), 28 U.S.C.A. foll. § 2254.

10. Criminal Law <394.1(2)

Remedy for Massiah violation is not
automatic reversal of conviction, but rather
exclusion of evidence tainted by violation of

- defendant’s right to counsel. U.S.C.A.

Const.Amend. 6.

11. Habeas Corpus <—490(3)

Any error based on alleged Massiah
violation, occurring when inmate testified
in murder prosecution that defendant made
‘Jailhouse confession” in which he admitted
that he shot police officer during robbery,
was harmless, in view of other evidence
indicating defendant’s guilt, including
statements of codefendant, and defendant’s
confession to his participation in robbery.
U.S.C.A. Const.Amend. 6.

Mary Beth Westmoreland, Asst. Atty.
Gen., Susan V. Boleyn, William B. Hill,
Atlanta, Ga., for respondent-appellant.

Robert H. Stroup, Atlanta, Ga., Julius L.
Chambers, NAACP Legal Defense Fund,
James M. Nabrit, II, John Charles Boger,
New York City, for petitioner-appellee.

Appeals from the United States District
Court for the Northern District of Georgia.

Before KRAVITCH and
EDMONDSON, Circuit Judges, and
RONEY, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This is a consolidated appeal by the State
of Georgia from the district court’s grant
of Warren McCleskey’s second petition for
a writ of habeas corpus and from the dis-
trict court’s denial of the State’s motion

1. The statement of facts is taken from the Geor-
gia Supreme Court’s opinion on direct appeal,

890 FEDERAL REPORTER,

2d SERIES

under Fed.R.Civ.P. 60(b) for relief from the
judgment. The district court granted the
writ solely on the basis of McCleskey’s
claim that his sixth amendment rights had

been violated under Massiah v. United
States, 377 U.S. 201, 84 S.Ct. 1199, 12

L.Ed.2d 246 (1964).. Because we find that,

the district court abused its discretion in
failing to dismiss McCleskey’s Massiah al-
legation as an abuse of the writ, we re-
verse the district court. without reaching
the merits of McCleskey’s Massiah claim or
of the State’s Rule 60(b) motion.

I...FACTS!
“MeCleskey was arrested arid charged

, with the murder of a police officer during

an armed robbery of the Dixie Furniture
Store. The store was robbed by four men.
Three entered through the back door and
one through the front. Each of the four
men was armed. McCleskey had a .38 cali-
ber Rossi white-handled, nickel-plated pis-
tol, Ben Wright had a sawed-off shotgun,
and the other two had» blue steel pistols.
The man who entered through the front
secured the store, forcing the employees to
lie on the floor. The others rounded up the
employees in the rear and began to tie
them up with tape. The manager was
forced at gunpoint to turn over the store
receipts, his watch, and six dollars. Re-
sponding to a silent alarm, a police officer
entered the store by the front door. He
proceeded approximately fifteen feet down
the center aisle. Two shots were fired.
One shot struck the police officer in the
head causing his death. The other shot
glanced off a pocket lighter in the officer’s
pocket and lodged in a sofa. That bullet
was recovered. The robbers fled. Some-
time later, McCleskey was arrested in con-
nection with another armed robbery.

McCleskey was identified by two of the
store personnel as the robber who came in
the front door. Shortly after his arrest,
McCleskey confessed to participating in the
robbery, but maintained that he was not
the triggerman. One of his accomplices,
Ben Wright, testified that McCleskey ad-

McCleskey v. The State, 245 Ga. 108, 263 S.E.2d
146 (1980).

c
mitted to shooting the officer.
ans, a jail inmate housed near
‘testified that McCleskey made a
confession” in which he claimed
triggerman. The police officer
ya bullet fired from a .38 ¢
handgun. . Though the weapon
covered, McCleskey had stolen
Rossi. in a holdup of a Red |
tore,.two months earlier.

II. PRIOR PROCEED

ering jury convicted McCleske
“two counts of armed robb
mced McCleskey to death for
the ‘police officer and to cor
itences ‘for the two robbery
0° these convictions and se1
firmed by the Georgia Sup
Cleskey v. State, 245 Ga. 10
‘cert: denied, 449 US. 8
25 66'L:Ed.2d 119 (1980). I
1981, ‘McCleskey’ petitioned fo:
; pus S‘relief in the Superior Co
County; ‘asserting over twent
fo" his “conviction and sente
amendment to his petition, }
a eged a a Massiah violation, claii
‘introduction into evidence of s
mé e> to an informer violate
ander, the sixth amendment. —
at United, States, 377 U.S.
The. petition was des
fie ary. hearing and the
- Court denied McCles!
tion or a certificate of prob
fap “The' United States 5
i ed. McCleskey’s petition —
cCleskey v. Zant, 454 US. 1
iL. Ed. 2d 631 (1981).

[cCleskey filed his first f
‘petition °in district court in
; 981, asserting eighteen grou
“Ing the writ. That petition d
y claim under Massiah. It
include a claim under Gig
tates, . 405 U.S. 150, 92

eL.Ed.2d 104 (1972), alleging
rosecutor had failed to rev
Evans, one of its witnesses, |!
3 ised favorable treatment as
his: testimony. In 1984, the


McCLESKEY v. ZANT

345

Cite as 890 F.2d 342 (11th Cir. 1989)

mitted to shooting the officer. Offie Ev-
ans, a jail inmate housed near McCleskey
testified 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

andgun. , Though the weapon was not re-
covered, McCleskey had stolen a .38 caliber
Rossi in a holdup of a Red Dot grocery

_store,.two months earlier.

potest

© geecssIL. PRIOR PROCEEDINGS

2\'The jury convicted McCleskey of murder

and two counts of armed robbery. It sen-
tenced McCleskey to death for the murder
of the police officer and to consecutive life
Sentences for the two robbery counts. In
© 1980? these convictions and sentences were
"affirmed by the Georgia Supreme Court,
UcCleskey v. State, 245 Ga. 108, 263 S.E.2d
AGS Gert. denied, 449 US. 891, 101 S.Ct.
253," 66 L:Ed.2d 119 (1980). In January of
1981, McCleskey petitioned for habeas cor-
‘pus relief in the Superior Court of Butts
County, ‘asserting over twenty challenges
‘toThis conviction and sentence. In an
{amendment to his petition, McCleskey al-

‘he petition was denied after an
“gyzde tary, hearing and the Georgia Su-
breme, Court, denied ‘McCleskey’s applica-
mn “a certificate of probable cause to
pea The' United States Supreme Court
nied. McCleskey’s petition for certiorari.
cCleskey v. Zant, 454 US. 1093, 102 S.Ct.
659;'70:L.Ed.2d 631 (1981).
McCleskey filed his first federal habeas
Petition in district court in December of
L981, asserting eighteen grounds for grant-
ing the writ. That petition did not include
% claim under Massiah. It did, however,
Jmclude a claim under Giglio v. United
- States, 405 U.S. 150, 92 S.Ct. 763, 31
“tLEd.2d:104 (1972), alleging that the state
Prosecutor had failed to reveal that Offie
Evans, one of its witnesses, had been prom-
vised favorable treatment as a reward for
his testimony. In 1984, the district court

granted habeas corpus relief as to McCles-
key’s Giglio claim. It ordered that his
conviction and sentence for malice murder
be set aside, but affirmed his convictions
and sentences for armed robbery. McCles-
key v. Zant, 580 F.Supp. 838 (N.D.Ga.
1984).

Both parties appealed and in 1985, the
Eleventh Circuit, sitting en banc, reversed
the district court’s grant of the writ on the
Giglio claim and affirmed on all claims
denied by the district court. McCleskey v.
Kemp, 753 F.2d 877 (11th Cir.1985) (en
banc). McCleskey then filed a petition for
a writ of certiorari in the Supreme Court of
the, United States. The Supreme Court
granted certiorari limited to consideration
of the application of the Georgia death
penalty and affirmed the Eleventh Circuit.
McCleskey v. Kemp, 481 US. 279, 107 S.Ct.
1756, 95 L.Ed.2d 262, petition for rehear-
ing denied, 482 U.S. 920, 107 S.Ct. 3199, 96
L.Ed.2d 686 (1987).

McCleskey filed a subsequent petition
for 2 writ of habeas corpus in state court in
June of 1987. In an amendment to that
petition, McCleskey once again raised a
Massiah claim, alleging that newly discov-
ered evidence demonstrated that a jail in-
mate of McCleskey’s was acting on behalf
of the State as an informant. The state
court granted the State’s motion to dismiss
and. the. Georgia Supreme Court denied
McCleskey’s application for a-certificate of
probable cause.

McCleskey filed the present petition for a
writ of habeas corpus in federal district
court in July of 1987. After evidentiary
hearings on the petition in July and August
of 1987, the district court entered an order
granting habeas corpus relief only as to
McCleskey’s murder conviction and sen-
tence based upon the finding of a Massiah
violation. McCleskey v. Kemp, No. C87-
1517A (N.D.Ga. Dec. 23, 1987).

The State now appeals the district court’s
grant of the writ, claiming that the district
court abused its discretion in failing to
dismiss McCleskey’s Massiah allegation as
an abuse of the writ and that the district


346

cour
ah.?

Ill. ABUSE OF THE WRIT

A. Background
[1] Under the doctrine of “abuse of the
writ,” a federal court may decline to enter-
tain a second or subsequent habeas corpus
petition that raises a claim that the peti-
tioner did not raise in a prior petition. The
doctrine is grounded in the court’s eq-
uitable power to decline to entertain a ha-
beas corpus petition properly within its jur-
isdiction when “a suitor’s conduct in rela-
tion to the matter at hand ... disentitle[s]
him to the relief he seeks.” Sanders v.
United States, 373 U.S. 1, 17, 88 S.Ct.
1068, 1078, 10 L.Ed.2d 148 (1968) (quoting™
Fay v. Noia, 372 U.S: 391,° 438, 83 S.Ct.

822, 849, 9 L.Ed.2d 837 (1963).

[2] The statutory basis for the doctrine
of abuse of the writ in cases of successive
petitions for habeas corpus can be found at
98 U.S.C. § 2244(b)* and Rule 9(b) of the
Rules Governing Section 2254 Cases in the
United States District Courts.* These pro-
visions address the problem of prisoners
filing the same claims in successive peti-
tions as well as the problem of prisoners
who abuse the writ by filing their claims
piecemeal. A “successive petition” is one
that raises a claim already adjudicated
through a prior petition, while a petition
that raises grounds for relief not raised in

2. This court stayed the briefing schedule of the
appeal pending the State’s filing in district court
of a motion under Fed.R.Civ.P. 60(b) for relief
from the judgment based on the availability of
witness Offie Evans. The district court denied
the motion and this court granted the State’s
motion to consolidate the State’s original appeal
and its appeal from the denial of the motion for

relief from the judgment.

3. 28 U.S.C. § 2244(b) states as follows: °
When after an evidentiary hearing on the
merits of a material factual issue, or after a
hearing on the merits of an issue of law, a
person in custody pursuant to the judgment of
a State court has been denied by a cou
the United States or a justice or judge of the
United States release from custody or other
remedy on an application for a writ of habeas
corpus, a subsequent application for a writ of

t erred in finding a violation of Mass1-

390 FEDERAL REPORTER, 2d SERIES

the prior petition is analyzed as an “abuse
of the writ.” See Gunn v. Newsome, 881
F.2d 949, 955 n. 6 (11th Cir.1989) (en banc)
(plurality opinion), petition for cert. filed,
No. 89-611 (Oct. 16, 1989).

A federal court’s decision to exercise its
equitable power to dismiss a petition. is
based on different considerations in the
two types of cases. In cases of successive
petitions, equity usually will not permit a
petitioner to reassert a claim resolved
against him ‘“‘in the hope of getting before
a different judge in multijudge courts.”
See Sec. 2254 Cases R. 9 advisory commit-
tee’s note. In cases of abuse of the writ,
equity counsels against allowing “needless
piecemeal litigation” or “collateral proceed-
ings whose only purpose is to vex, harass,
or delay.” Sanders, 373 US. at 18, 88
S.Ct. at 1078. In both instances, the need
for finality in criminal law counsels strong-
ly against courts repeatedly reviewing
criminal convictions. See Kuhlmann ¥.
Wilson, 477 U.S. 436, 452-53, 106 S.Ct.
2616, 2626-27, 91 L.Ed.2d 364 (1986) (plu-
rality opinion).

[3] The state has the burden of plead-
ing that the habeas petitioner has abused
the writ. Price v. Johnston, 334 U.S. 266,
991-92, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356
(1948). This circuit has held that “{tJhe
state carries its burden by recounting the
petitioner’s' writ history, identifying the
claims not raised before the instant petition

habeas corpus in behalf of such person need
not be entertained by a court of the United
States or a justice or judge of the United
States unless the application alleges and is
predicated on a factual or other ground not
adjudicated on the hearing of the earlier ap-
plication for the writ, and unless the court,
justice, or judge is satisfied that the applicant
has not on the earlier application deliberately
withheld the newly asserted ground or other-
wise abused the writ.

4. Rule 9(b) provides as follows:
Successive Petitions. A second or successive
petition may be dismissed if the judge finds
that it fails to allege new or different grounds

rt of for relief and the prior determination was 0?

the merits or, if new and different grounds
are alleged, the judge finds that the failure of
the petitioner to assert those grounds in 4
prior petition constituted an abuse of the writ.

d alleging that the petitione
it in violation of 28 US.C.
» Booker: v. Wainwrig!
By371, 1376 (11th Cir.1985), cer"
S, 975, 106 S.Ct. 339, 88
1985). . The State has clearly

ere, as it is evident thi

den h é
Mdid not assert his Massiah cla

" éderal habeas’ petition.
4.5] | McCleskey’s previo

; Hesert the claim does not, ho
“the federal court to dismiss k
have recognized

Wainwright, id.; see als
Palle, 632. F.2d 1278, 1276
"Once the state has alleget
the petitioner must k
snity to justify his |
so the claim. In dec’
er has presented su:
“Hon; courts have required
Bee that he did not delik
‘claim and that his failu
“due to inexcusable neg
v.cHutchins, 464 U.
Ct:<152, 153, 78 L.Ed.2
uriam), (Powell, J., cone
ir other justices); Dem
1385; -1391 (11th C
ert. filed, No. 89
48 (Aug. 4, 1989);
pright;;155 F.2d 1396,
‘cert..denied, 470 U.S. 10
"84. L.Ed.2d 801 (1985); -
PR2d,727,.740-41 (5th!
ert. denied, 454 US. 87
{LEd.2d 187 (1981).° If
that, the petitioner has
burden of disproving 2!
it’may. dismiss the petit
| if e demand that
merits. " Sanders, 373
TSE at 1078-79; Der
F.2d at 1391, Davis
#5221526 (11th Cir.19
-U.S. 929,108 S.Ct. 1
© (1988).

“5. In Bonner v. City of .
23209 (11th Cir-1981)
© adopted as binding pr
iS" the’ former Fifth Circ
“SOctober 1, 1981.

oO

°


McCLESKEY v. ZANT
342 (11th Cir. 1989)

Cite as 890 F.2d
~and alleging that the petitioner abused the
ayrit in violation of 28 US.C. § 2254, Rule
9(b).” Booker v. Wainwright, 764 F.2d
1371, 1376 (11th Cir.1985), cert. denied, 474
US. 975, 106 S.Ct. 339, 88 L.Ed.2d 324

(1985). The State has clearly met its bur-
den here, as it is evident that McCleskey
(did not assert his Massiah claim in his first
federal habeas: petition.

14,5) McCleskey’s previous failure to
‘assert the claim does not, however, require
“the federal court to dismiss his petition, for
‘the courts have recognized that “not all
ecemeal litigation is needless.” Booker
0, Wainwright, id.; see also Haley v. Es-
“elle, 632 F.2d 1273, 1276 (Sth Cir.1980).°
‘Once’ the state has alleged abuse of the
| “writ, the petitioner must be afforded the
‘opportunity to justify his previous failure

fo raise the claim. In deciding whether @
itioner has presented sufficient justifica-
tion, courts have required the petitioner to
ow that he did not deliberately abandon

ne claim and that his failure to raise it was
ot due to inexcusable neglect. « See Wood-
ard v.; Hutchins, 464 U.S. 377, 379, 104
S.Cu-752, 753, 718 L.bd.2d 541 (1984) (per
curial sais concurring, joined by
four. other justices); Demps v. Dugger", 874
F.2d:1385, 1391 (11th Cir.1989), petition
for. cert. filed, No. 99-5277, 1989. WL
113448 (Aug. 4, 1939); Witt v. Wain-
ht, 155 F.2d 1396, 1397 (11th Cir.),
1039, 105 S.Ct. 1415,

Potts -v. Zant, 638

B 1981),

(,L.Ed.2d 187 (1981)" I
that, the petitioner has
burden of disproving an abuse of the writ,

it. ay dismiss the petition unless the ends
of justice demand that the court reach the
merits. * Sanders, 373 U.S. at 16-19, 83
‘S.Ct at 1078-79, Demps ?. Dugger, 874
F.2d at 1391; Davis v. Kemp, 829 F.2d

522, 1526 (11th Cir.1987), cert. denied, 485

S. 929, 108 S.Ct. 1099, 99 L.Ed.2d 262

(1988).

ts.

©1209 (11th Cir.1981) (e
> adopted as binding precedent all decisions of
mine former Fifth Circuit handed down before
October 1, 1981.

In Bonner v. City of Prichard, 661 F.2d 1206,
this court

347

{6} Whether a second or subsequent pe-
tition is to be dismissed on abuse of the
writ grounds is left to the sound discretion
of the district court. Sanders, 373 USS. at
18, 83 S.Ct. at 1079; Darden 2. Dugge’,
925 F.2d 287, 294 (11th Cir.1987), cert. de-
nied, 485 U.S. 948, 108 §.Ct. 1125, 99
L.Ed.2d 285 (1988); Potts v. Zant, 638 F.2d
at 741. Yet discretion in such matters is
not unfettered, and its sound exercise will
rarely permit a district court to hear a
petition that clearly constitutes an abuse of
the writ. See Gunn v. Newsome, 881 F.2d
at 949.

In the instant appeal, the district court
found that McCleskey could not be said to
have intentionally abandoned his claim.
We disagree and find that the district court
abused its discretion in failing to dismiss a
clearly abusive petition. 3

B. Deliberate Abandonment of the Mas-
siah Claim

’

[7] McCleskey asserts that. his failure
to raise a Massiah claim in his earlier fed-
eral petition is justified because at the time
he filed that petition, he lacked the evi-
dence to support such a claim. To demon-
strate a violation of sixth” amendment
rights under Massiah v. United States, 377
US. 201, 84 S.Ct 1199;"8 defendant must
show that the prosecution deliberately elic-
ited incriminating statements from him in
the absence of his lawyer. Massiah itself
imvolved statements made by a defendant
free on bail to a'co-indictee in a car that
had been wired by the government. In
United States v. Henry, 447 US. 264, 100
S.Ct. 2183, 65 L.Ed.2d' 115 (1980), the Su-
preme Court applied Massiah to a situation
in which incriminatory statements were
made to a cellmate who was 2 government
informant. In Kuhlmann 2. Wilson, the
Supreme Court stressed that a defendant
alleging a Massiah violation “must demon-
strate that the police and their informant

6. In Stein v. Reynolds Securities, Inc., 667 F.2d
33 (11th Cir.1982), this court adopted as binding
precedent all decisions of Unit B of the former
Fifth Circuit handed down after September 30,
1981.


took some action, beyond merely listening,
that was designed deliberately to elicit in-
criminating remarks.” 477 U.S. at 459, 106
S.Ct. at 2630.7

McCleskey bases his Massiah claim on
two pieces of evidence. The first is a 21-
page written statement of Offie Evans, a
prisoner who was incarcerated in the cell
next to McCleskey’s when McCleskey was
in the Fulton County Jail awaiting trial.
Evans testified against McCleskey at trial,
relating several incriminating statements
made by McCleskey. The written state-
ment, which had been given to the Atlanta
Police Department in August of 1978, sets
out. these conversations in great detail,
demonstrating that Evans lied to McCles-
key in order to get information from him.
McCleskey argues that the written state-
ment shows evidence of an ab initio rela-
tionship between Evans and the prosecu-
tion and is thus highly pcevant to his Mas-
siah claim.

The*second piece of evidence McCleskey
uses to support his Massiah claim is the
testimony of Ulysses Worthy who was cap-
-tain of the day watch at the Fulton County
Jail during the summer of 1978. Worthy
testified at two separate points during the
district court hearings on McCleskey’s sec-
ond habeas petition. Though Worthy’s tes-
timony was at times confused and contra-
dictory, the district court credited Worthy’s
assertion that at some point some officer
involved with the case had asked that Ev-
ans be moved to a different cell. The dis-
trict court judge relied heavily on Worthy’s
testimony in holding that McCleskey had
presented a valid Massiah claim. In fact,
he found that “{t]he lack of corroboration
by other witnesses is not surprising; the
other witnesses, like Assistant District At-
torney Parker, had no reason to know of a
request to move Evans or, like Detective
Dorsey, had an obvious interest in conceal-

7. In Lightbourne v. Dugger, 829 F.2d 1012 (11th
Cir.1987), cert. denied, — U.S. ——, 109 S.Ct.
329, 102 L.Ed.2d 346 (1988), this circuit charac-
terized petitioner’s burden in a Massiah/Henry
claim as one involving two elements: “In order
to establish a violation of the Sixth Amendment
in a jailhouse informant case, the accused must

show (1) that a fellow inmate was a government

348 890 FEDERAL REPORTER, 2d SERIES

ing any such arrangement. Worthy, by
contrast, had no apparent interest or bias
that would explain any conscious decep-
tion.” McCleskey, No. C87- 1517A, slip op.
at 22.

McCleskey maintains that he was un.
aware of both pieces of evidence critica] to
his Massiah claim until well after he filed
his first federal habeas petition. It is un-
contested that he did not obtain Evans’
statement until July of 1987 and that he did
not know about the existence of Worthy
until the time of the hearing on the second
federal habeas petition. The State strong-
ly contends that habeas counsel realized or
should have realized that Evans had made
a written statement concerning his conver-
sations with McCleskey and asserts that
petitioner’s counsel should have made some
effort to obtain that statement. The dis-
trict court found, however, that, McCleskey
was not in fact aware of the written state-
ment, and we cannot say that this determi-
nation is clearly erroneous.

Assuming that McCleskey was unaware
of both pieces of evidence, the question
before us is whether McCleskey’s unaware-
ness of the factual bases for his Massiah
claim at the time of his first federal habeas
petition is sufficient to justify his failure to
present the claim. The district court found
that it was sufficient, holding that McCles-
key’s unawareness precluded a finding of
deliberate abandonment of the claim, de-
spite the fact that McCleskey had raised it
in his first state habeas eric We dis-
agree.

In finding that McCleskey did not delib-
erately abandon his Massiah claim, the dis-
trict court stated that:

First petitioner cannot be said to have
intentionally abandoned this claim. Al-
though petitioner did raise a Massiah
claim in his first state petition, that claim
was dropped because it was obvious that

agent; and (2) that the inmate deliberately elic-
ited incriminating statements from the ac-
cused.” Jd. at 1020.

8. For instance, Evans told McCleskey that his
name was Charles, that he was the uncle of
codefendant Ben Wright, and that he was sup-
posed to be a participant in the robbery himself.

McCLE
Cite as 890 F
iti: could not succeed given the th
known facts. At the time of his fi
federal petition, petitioner was unaw
of: Evans’ written statement, which,
noted above, contains strong indicati
of.an ab initio relationship between
ans and the authorities. Abandonin
claim whose supporting facts only |
become evident is not an abandon
at “for strategic, tactical, or any 0
asons ... can be described as the d
erate by- passing of state procedur
ae Petitioner’s Massiah claim is th
‘ore not an abuse of the writ on whic
vidence should have been taken. Th
not a case where petitioner has rese
his ‘proof or deliberately withheld
‘claim. for a second petition..... No
etitioner now raising an issue ide

tis No. C87-1517A, slip op. a
cus

itations omitted).

strues, ,the-meaning of deliberate aban
j _McCleskey included a Mos

| n his, first, federal petition, and now ass

again. in his second federal peti
ayen ., .that, McCleskey had asserted
Bessie, ‘claim in his first state ha

that’ at the ie McCleskey filed his
fate habeas petition, counsel had d
‘that there was some factual

4 Massiah claim. Indeed, such a d

an amendment to his first state pe
McCleskey alleged that:

Thejintroduction into evidence of petiti
tements to an informer, elicited in a
ion created to induce the petitioner to
ee /) incriminating statements without vassi
ie BUk of counsel, violated the petitioners rj
counsel under the Sixth Amendment
Constitution of the United States and
2-111 of the 1976 Constitution of the St
crorgia.

10... Evens testified at trial as to certain
re that McCleskey had made in pri

Me ‘In Giglio v. United States, 405 U.S. 1
S.Ct. 763, 31 L.Ed.2d 104 (1972), the Su


|
| , McCLESKEY v. ZANT 349
| is Cite as 890 F.2d 342 (1ith Cir. 1989)

hy, by it could not sueceed given the then- counsel aware that Evans was in a cell next
or bias known facts. At the time of his first to McCleskey,'® but counsel was also aware
decep- federal petition, petitioner was unaware that some sort of relationship existed be-
slip op. of Evans’ written statement, which, as tween Evans and the police, as this formed
» noted above, contains strong indications the basis of McCleskey’s Giglio claim.}!

of an ab initio relationship between Ev- The petitioner and his counsel did not acci-

7as un-
itical to
he filed
t iy un-
Evans’
t he did
Worthy
second
strong-
lized or
.d made
conver-
cts that
de some
The dis-
‘Cleskey
on state-
determi-

un 3
question
inaware-
Massiah
il habeas
‘ailure to
irt found
; McCles-
inding of
laim, de-
raised it
We dis-

not delib-
igthe dis-

d to nave
lam. Al

Massiah
that claim
vious that

erately elic-
ym the ac

key that his
he uncle ©
he was Sup”
yer sé SEH

ans and the authorities. Abandoning a
claim whose supporting facts only later
become evident is not an abandonment
that ‘for strategic, tactical, or any other
reasons ... can be described as the delib-
erate by-passing of state procedures.”
~. Petitioner’s Massiah claim is there-
fore not an abuse of the writ on which no
evidence should have been taken. This is
snot a case where petitioner has reserved
| his proof or deliberately withheld his
‘claim for a second petition. ..- Nor is

‘the petitioner now raising an issue identi-
jdered without

‘McCleskey, No. C87-1517A, slip op. at 24
(citations omitted).

= This holding by the district court miscon-
@ctrues the meaning of deliberate abandon-

mh ate ee

nts. McCleskey included a Massiah
m_in his first state petition, dropped it
his first federal petition, and now asserts
again in his second. federal petition.

Given that McCleskey had asserted the

Masst h claim in his first state habeas
“petition, it is clear that the issue was not
unknown to him at the time of his first
i federal petition. Further, we must assume
‘that at the time McCleskey filed his first
3 tate habeas petition, counsel had deter-
ined:that there was some factual basis
or a Massiah claim. Indeed, such a deter-
‘ination is not surprising. Not only was

i n an amendment to his first state petition,
PMcCleskey alleged that:
“The introduction into evidence of petitioner's
statements to an informer, elicited in a situa-

on created to induce the petitioner to make
nts without assistance

e petitioner's right to
‘counsel unde h Amendment to the
Constitution of the United States and Section

a

4 111 of the 1976 Constitution of the State of

6.. Evans testified at trial as to certain state-

sments that McCleskey had made in prison.

bya |

Hai'In Giglio v. United States, 405 US. 150, 92
Ct, 763, 31 L.Ed.2d 104 (1972), the Supreme

dentally fail to include the Massiah elaim in
the federal petition, but made a knowing
choice not to pursue the claim after having
raised it previously. This constitutes prima
facie evidence of deliberate abandonment.
In Darden v. Dugger, We stated that:

The record shows that the issue present:
ed in this third petition was specifically
withdrawn from the district court’s con-
sideration as being not well founded.
The issue was abandoned. Intentional
abandonment of a claim is precisely the
context that application of the concept of
abuse of the writ is intended to address.
Witt, 155 F.2d at 1397. Petitioner may
be deemed to have waived his right to a
hearing on a successive application for
federal habeas relief when he deliberate-
ly abandons one of his grounds at the

first hearing.

925 F.2d at 294.

When asked at the second federal habeas
hearing why he did not pursue the Massiah
claim in his first federal petition, counsel
responded that his efforts to find evidence
in support of the claim had failed. It ap-
pears, however, that these efforts were
somewhat lacking. Counsel testified that
he informally attempted to contact jailers
at the Fulton County Jail,. but that they
could provide him with no information.”

Court held that the state violates due process
when it obtains a conviction on the basis of 2
witness's testimony when the witness has failed
to disclose a promise of favorable treatment
from the prosecution. McCleskey included a
Giglio claim in his first state and first federal

habeas petitions.

12. At his second federal habeas hearing, the
lawyer who represented McCleskey at the first
federal habeas hearing testified that he “spoke
with a couple of Atlanta Bureau of Police Ser-
vices Officers” in order to find out how to devel-
op factual evidence in support of aclaim. Pur-
suant to their suggestion, counsel spoke with
two or three persons who were deputies at the
Fulton County Jail. He testified that “none of

350 890 FEDERAL REPORTER, 2d SERIES

He also noted that at a deposition taken for
the first state habeas hearing, Russell Par-
ker, the District Attorney prosecuting the
case, claimed that. he was unaware of any
instance in which Evans had worked for
the Atlanta Police Department prior to his
overhearing conversations at the Fulton
County Jail. Counsel testified that he did
not carry the Massiah claim over into. the
federal habeas petition because he “looked
at what we had been able to develop in
Support of the claim factually in the state
habeas proceeding and made the judgment
that we didn’t have the facts to support the
claim and, therefore, did not bring it into
federal court.”

[8] _ Abandoning a claim after initial in-
vestigatory efforts prove unsuccessful can-
not insulate a petitioner from abuse of the
writ. See Witt v. Wainwright, 755 F.2d at
1397 . (insufficient to allege that evidence
was not available if it was within petition-
er’s power to elicit such evidence at time of
earlier petition); . Woodard | v. Hutchins,
464 U.S. 377, 379 & n. 3, 104 S.Ct. 752, 753
& n. 3, 78 L.Ed.2d 541 (1984) (per curiam)
(Powell, J., concurring, joined by four other
justices) (petitioner found to have abused
the writ when he is unable’ to explain why
examination providing evidence of insanity
was not conducted earlier); Antone v. Dug-
ger, 465 U.S. 200, 205 & n. 3, 206, 104 S.Ct.
962, 964 & n: 3, 965, 79 L.Ed.2d 147 (1984)
(per curiam) (haste with which first habeas
petition prepared does not require courts to
consider claims withheld from that petition

if substance could have been presented in:

first petition).

[9] McCleskey places great emphasis on
the fact that the State allegedly withheld
Evans’ 21-page statement from both trial
and habeas counsel. The statement was

them had any information. Basically they had
no recollection of the circumstances regarding
how Evans came to be assigned to the jail cell
that he ‘was assigned to or of any conversations
with the Atlanta Bureau of Police Services De-
tectives regarding Offie Evans’ assignment to
that jail cell.”

Counsel apparently made no attempt to con-
tact persons who clearly had contact with Evans
and McCleskey at the Fulton County Jail. He
testified that he did not speak to Detective Dor-
sey (mentioned by Evans in his testimony at the

ultimately obtained in June of 1987
through a request pursuant to the Georgia
Open Records Act, 0.C.G.A. § 50-18-72(a),
It is clear, however, that the statement
itself does not demonstrate the existence of
a Massiah violation. At most, it was sim-
ply the catalyst that caused counsel to pur-
sue the Massiah claim more vigorously.
The key - piece of | evidence supporting
McCleskey’s Massiah ‘claim was the testi-
mony of Worthy, who testified for the first
time at the second federal habeas hearing
in July of 1987. Counsel claims that he did
not discover Worthy until he engaged in a
“massive, indiscriminate effort to subpoena
everyone whose name was mentioned in
arty document.” ~ McCleskey has not
presented any reason why counsel would
have been unable to contact Ulysses Wor-
thy back in 1981 when the first federal
habeas petition was filed. Nor has he
shown that a more extensive effort at that
time to track down persons with informa-
tion as to what transpired in the county jail
during the summer of 1978 would not have
turned up Worthy. A petitioner and his
counsel may not circumvent the abuse of
the writ doctrine by failirig’ to follow
through with an investigation and then la-
ter asserting that the claim could not have
succeeded earlier on the facts as then
known. It will only be possible to avoid
piecemeal litigation if counsel is required to
make a thorough investigation of the facts
at the time of petitioner’s first petition for
habeas corpus.!3 .

C.. Ends of Justice

Having found that McCleskey abused the
writ by deliberately abandoning his Massi-
ah claim, we must now decide whether the
“ends of justice” require consideration of

first state habeas hearing), to Detectives Jowers
or Harris (officers who had investigated the
McCleskey case), or Deputy Hamilton (who tes-
tified at trial regarding his contact with Mr.
Evans).

13. We also note that in 1981 there apparently
still existed records listing each prisoner's cell
assignment and any visitation of prisoners by
outsiders. These records, which would have
corroborated or disproved Worthy’s testimony,
have since been destroyed.

his:claim on the merits.!* See Sa

‘United States, 373 U.S. at 16-19,

078-79. In Kuhlmann v. Wi
Supreme Court attempted to give
ntent to the open-ended “ends of

anquiry. Its statement, however, t

nds of justice’ require federal c
entertain such petitions only whe

ner supplements his constitutio

th a colorable showing of fact
nce,” 477 U.S. at 454, 106 S.Ct.
mmanded only a plurality of the

é Messer v. Kemp, 831 F.2d 946

49° (1ith Cir.1987) (en banc), cert.

485"U.S. 1029, 108 S.Ct. 1586, 99

F902 (1988). Thus, the circumstance
which ends of justice would require
Ling of an otherwise abusive petitio

nparticularized.

i W > find it unnecessary to more n

define the circumstances in this cas

the: instances in which ends of
uld require a rehearing of a clai

lude those in which a violation o

Ge

titutional right would be found to

‘harmless error.° The mem
panel disagree as to whether

panel is unanimous that any

ithatsmay have occurred would co

y

n concluding otherwise.

af

iction, but rather the exclusion
ence; tainted by the violation of p
er’s right to counsel. United St
Morrison, 449 U.S. 361, 365, 101 S.{
1868, 66 L.Ed.2d 564 (1981). The p
USe-of: the tainted evidence will not
AN'a'reversal of a conviction if it cons
“harmless error.” Under the harm

14. The district court did not reach the
Justice” inquiry as it found that McG
claim did not constitute abuse of the

AS See Messer v. Kemp, 831 F.2d at 95

_,, Because we conclude, as a matter of |
~ the record in this case fails to disclosé

7 Ss

: . inate
: cated to
= die today

But 2 jurors recant
votes.for. penalty.

New York Times

ATLANTA — After 13 years of

litigation that helped define the
a law on capital punishment, a Geor-
v gia man may be put to death today
despite statements by two jurors
that they no longer think he should
be executed.

The condemned man, Warren
McCleskey, sentenced to death for
the 1978 killing of an Atlanta po-
liceman, was the subject of two
U.S. Supreme Court rulings in re- _
cent years that have dramatically
narrowed the appeals options open
to death row inmates and their

. lawyers.
t . Now, McCles-

; key’s hope for a
commutation
: from the Georgia
o Board of Pardons
and Paroles’ de-

pends on how the

board responds to
information the - ; |

Supreme Court McCleskey

refused to consid-

er in a sweeping 1990 ruling that

dramatically limited the rights of

death row inmates to file appeals.
The board Monday heard from
_ two jurors who said that, had they
:.| been told that one of McCleskey’s
‘py two accusers was a police infor-
“121 mant who was offered the chance
‘s| Of a lighter sentence in exchange
4 | for incriminating testimony, they
: would not have voted for the death
penalty.

The Supreme Court ruledin 1990:

* «| that that same information, discov-  -
. “j]. ered by McCleskey’s lawyers long ..

‘| after his original trial, was invalid
ar because it should have been intro-

«<4 duced earlier in his appeals.

: ‘McCleskey, 46, admits he is one
of four men who committed the
furniture store robbery on May 13, .
1978, in which -officer Frank
Schlatt was shot and killed. But he
has denied shooting Schlatt. .

Only McCleskey, as the convict-

>. }.| ed killer, was given a death. sen-
\ ; {tence in the case. ..

‘ a The board is expected. to rule
iB '« | this afternoon, before ..the..sched-
£ ‘) | uled execution in the electric chair
; ms at7pm. ... : , wile
t ae In two separate, hearings. Mon-
$ “| day, the board heard first from
} family members and friends of the
$ “| officer urging an execution and
B «| then from those opposing it.

During McCleskey’s trial, jurors
were told only that the witness was
a fellow prisoncr and knew nothing
of his status as an informant. The
other testimony came from one of
the other robbers, who could also
have been the triggerman. ;

McCleskey’s name is on two of

ok ’ the most important Supreme Court
3 _ | rulings on the death penalty issued
’ over the past decade. In both cases,
: the court narrowed the options
-— open to death penalty appellants.

wer A SEES

oN ee terts e

Pa

So

et SEM,

APT ns te iat r

aa

Ries

ESTEE > awh:

é

_. San Jose Mercury News m Tuesday, September 24, 1991” 3A

|

gat

DUNT CP MLEDT

Me a eee
“Two of Supreme
Pi my anes Appibens it
TUN GY Sit oer York Times...

_ Atlanta obsiab a 18h
After 13. years of litigation that

helped define the law on capital:

punishment, a Georgia man may

‘be put ‘to death. today ;despite »

** statements” by. two. jurors that
‘they no longer a he should he
executed. ' tad? availed zrevi
The condemned’ man}: Warren
~ McCleskey, sentenced to death for
the 1978 killing of an Atlanta po-
liceman, was the subject of two
U.S. Supreme Court rulings in re-
cent years that have dramatically
narrowed the options for appeal

ch

open to death row inmates and 7

their lawyers.

Now, ina easatoises! finale to
his case, McCleskey’s hope for a
commutation from the Georgia
Board of Pardons and Paroles de-
pends on how the board responds
_to information the Supreme Court
refused to consider in a sweeping
1990 ruling that dramatically limit-

éd the rights of death row inmates --

~ to file appeals.

The board yesterday heard:
“from two jurors who said that, had
they been told that one of McCles-

key’s two accusers was a police

informant who was offered the
chance of a lighter sentence in ex-

change for incriminating testimo- .

ny, they would not have voted for
the death penalty.

-The Supreme Court ruled in”

Court’ s most importan

1990 that that. same information,
, discovered by McCleskey’s lawyers postal‘worker who was onthe jury penalty case in 11 years, eliminat- °
iy long after. his original trial, was that convicted McCleskey, is one ed the last sweeping legal ’ ‘chal- ;

Deals. 3 10 <9

invalid because. it should have’.
been introduced earlier in his a

amet Pt ig :
“*McCleskey, 46, admits he is one

ot four ‘men who committed the
“furniture store robbery on May 13, .
1978, “in “which ’ Officer “Frank ©

Schlatt was shot and killed. But he

has denied shooting Schlatt, +
Only McCleskey, as the convict-

ed killer, was given a death sen-\-
‘ tence in the case.

The board is expected to rule
this afternoon, before the schedul-
ed execution in the electric chair
at 7 p.m. In the meantime, the fate

“of McCleskey, whose appeals have -

been compared in influence in
death penalty cases with Roe vs.
Wade in abortion law, still manag-
es to elicit the anguished passions
and ambiguities of the overall
death penalty debate.

‘5In ‘two separate hearings yes-
-terday, the board heard first from
the officer’s family members and

friends, who urged an execution,
and then from those opposing it. *

’ “ANT want is justice,” said Jod-’

ie Schlatt Swanner, now 24, the
only child of Schlatt. “He believed
in the justice system, and it’s about
time the justice system takes up

for my father. I want the sentence a J
. white. The ruling, described at the

carried out.” com

a} hat Ov

Soa

~ Robert Burnette. a ay-year-old

NATION _ San Francis Co Che OV icle _respay, serremnen 24, 191

_Inmate Who Made Legal History ; Set to Die
OT ONS on nt death penalty cases |

é

based on ‘his appeal

time ‘as the most important death |

} who does not want the sentence «. ‘lenge to the death neon ei

two witnesses who said McCleskey
was the killer, he would not have
found him credible. = 8

# »Jurors were told only that he’:
was a fellow prisoner, The other’
testimony came from one of the ’
“other robbers, who could also have i

been the triggerman. © %

“T believe if you take a-life,
death is the right punishment,”
Burnette said in an interview after
the hearing. “But when you take
that person’s life, you have to be
sure beyond a shadow of‘a doubt
that person committed the crime,
and I don’t feel that way about this
case.”

McCleskey’s name is on two of
the most important Supreme
Court rulings on the death penalty

“issued over the past decade. In
both cases, an increasingly conser-
vative court narrowed the options

_open to death penalty appellants.

-2 © In 1987, in a 5-to4 decision, the

‘, court ruled the death penalty con-

stitutional despite statistics show-

“ing that killers of white people are
far more likely to be executed
than killers of black people.

McCleskey is black; Schlatt was

= carried out. He says that, had he .‘
known more about Offie Evans,'a’
‘police informant who was one of. |«

79 ba?
Tah?

Second Appeal Ae isnoiees

‘Tn 1990, in ‘a 6-to-8 pains? on his
second appeal, the court sharply

curtailed the ability of death row .

inmates and other state pesougrs
to file multiple appeals. ;; « |

'” SN federal ‘judge. had_ruled'in |

McCleskey’s favor, saying the sen- |

tence had been tainted by the pros-

ecution’s failure to reveal that Ev- |

ans was a police informer. with
something to gain by his testimo-
ny, and not just a disinterested in-

“mate.

But the U.S. Court of Appeals
in Atlanta overturned that find-
ing. The Supreme Court, ruling
that the claim should have been
raised earlier, upheld the appel-
late ruling in a finding that is like-
ly to dramatically speed up the
pace of executions.

McCleskey’s lawyers argued
yesterday that McCleskey’s sen-

tence reflected a tainted legal pro- .

cess and asked that his execution
be stayed and his sentence com-
muted to life. :

‘Central to their siegienititien
were the statements from two ju-
rors, Burnette and Jill Darmer,
that the information withheld
from them compromised the pro-

cess. Darmer called the proceed-

ings “an outrage.”


McCleskey
execution
is stayed
temporarily

By Lyle V. Harris
and Mark Curriden
Staff writers

A federal judge stayed
Warren McCleskey’s exe-
cution late’ Tuesday so he
could hear arguments that
the chairman of the state
Board of Pardons and Pa- \
roles had prejudged the
convicted killer’s bid for
clemency.

U.S. District Judge J.
Owen Forrester delayed
the execution, which had
been scheduled for 7 p.m.,
until midnight.

At the state prison in
Jackson, Corrections De-
partment spokesman Andy
Bowen said the delay “was
_. hot unexpected.” He said
| | "McCleskey;* who “refused
My his final meal, was pacing
|, the floor’and still ex ‘eos
yd Be to die.” REINS |, eon

— A CA]

-_
Ss
®

“as S|

SF:
fo oy 4g.
Bad Aalst 150

*

ae a
4

4 Feiss
Aaa

| eae The latest drama? in the,.
AL ey 13-year. legal: odyssey: that Q
al Suhas already resulted in two
“> landmark; U.S., Supreme
‘Court: “decisions,” ‘began
“at poucsday morning when the
| parole’ ® board . ; refused
Hee ‘“McCleskey’ sirequest:to.
commute his. ‘sentence: to.
plife.: Seba ks a) Hatiewaa 3s *- 4
i Less than two hours bes .
fore, the scheduled execu-\.
tion; attorneys filed nearly: -
&. identical «legal *. briefs). in; .
|| _ state and federal court. ThE
a) state appeal was quickly re- é
| ‘fused. But in federal ele fy Be
t _ Judge” Forrester: e Pa
‘ ¥ hearing, cya
aa Attorneyatciive® stat Stats Le
‘| ‘ford-Smith diets oe
| Mears" ‘alleged “that'’parole: : |. \\:
4 board gichairman oWayne- .-[ ay.
> Snowsj¢' shade) -prejudged, .|°--+
‘ McCleskey’s case; because; .
he reportedly: ‘said prior to...
the Monday hearing tt mathe *
» doubted’ the board’ would
‘grant'clemency: Waris.
a *They: quoted’Mr. Snow
is 8 saying, “There would be:
i sy change in Mr,:McCles- °
|/“key’s sentence asa ‘result of: -°
. the upcoming ‘hearing, and : :
"there: ‘would: be 0S caragti a Face ce


| 94 6A

|

1661 ‘2 HAAWALIAS AVASANL FWWNOLLWN SHWIL MYOA MAN AHL

|i,
a

Appeals Echoing, Inmate Faces Death

By PETER APPLEBOME
Special to The New York Times

ATLANTA, Sept. 23 — After 13 years
of litigation that helped define the law
on capital punishment, a Georgia man
may be put to death Tuesday despite
statements by two jurors that they no
longer think he should be executed.

.The condemned man, Warren
McCleskey, sentenced to death for the
1978 killing of an Atlanta policeman,
was the subject of two Supreme Court
rulings in recent years that have dra-
matically narrowed the options for ap-
peal open to death row inmates and
their lawyers.

Now, in a paradoxical finale to his
case, Mr. McCleskey’s hope for a com-
mutation from the Georgia Board of
Pardons and Paroles depends on how
the board responds to information the
Supreme Court refused to'consider in a
sweeping 1990 ruling that dramatically
limited the rights of death row inmates
to file appeals.

The board today heard from two
jurors who said that, had they been told
that one of Mr. McCleskey’s two accus-
ers was a police informant who was
offered the chance of a lighter sentence
in exchange for incriminating testimo-
ny, they would not have voted for the
death penalty. The Supreme Court
ruled in 1990 that that same informa-
tion, discovered by Mr. McCleskey’s
lawyers long after his original trial,
was invalid because it should have
been introduced earlier in his appeals.

Conflicting Calls for Justice
Mr. McCleskey, 46 years old, admits

he is one of four men who committed '

the furniture store robbery on May 13,
1978, in which Officer Frank Schlatt
was shot and killed. But he has denied
shooting Officer Schlatt. Only Mr.
McCleskey, as the convicted killer, was
given a death sentence in the case.

The board is expected to rule Tues-
day afternoon, before the scheduled
execution in the electric chair at 7 P.M.
In the meantime, the fate of Mr.
McCleskey, whose appeals have been
compared in influence in death penalty
cases with Roe v. Wade in abortion law,

Jurors’ doubts:
clash with the
impatience of a
victim’s friends.

|

sull manages to elicit the anguished
passions and ambiguities of the overall
death penalty debate.

In two separate hearings today, the
board heard first from family mem-
bers and friends of the officer urging
an execution and then from those op-
posing it.

“All T want is justice,” said Jodie
Schlatt Swanner, now 24, the only child
of Officer Schlatt. ‘‘He believed in the
justice system, and it’s about time the
justice system takes up for my father. I
want the sentence carried out.”

Shadowed by Doubt

Robert Burnette, a 49-year-old postal
worker who was on the jury that con-
victed Mr. McCleskey, is one who does
not want the sentence carried out. He
says that had he known more about
Offie Evans, a jail inmate who was one
of two witnesses who said Mr. McCles-
key was the killer, he would not have
found him credible. Jurors were told
only that he was a fellow prisoner. The
other testimony came from one of the
other robbers, who could also have
been the triggerman.

“Tl believe if you take a life, death is
the right punishment,” Mr. Burnette
said in an interview after the hearing
today. ‘‘But when you take that per-
son’s life you have to be sure beyond a
shadow of a doubt that person commit-
ted the crime, and I don’t feel that way
about this case. If we knew more about
Offie Evans, his credibility would have
been shot to hell.”

Mr. McCleskey’s name is on two of
the most important Supreme Court rul-
ings on the death penalty issued over
the past decade. In both cases, an in-

Marlene Ki
Warren McCleskey, who faces execution today for the 1978 killing of an
Atlanta police officer, talking with his lawyer, Robert Stroup, in prison
last Friday. Mr. McCleskey was the subject of two Supreme Court
rulings that have narrowed the options open to death row inmates.

s/Atlanta Journal Constitution

creasingly conservative Court nar-
jrowed the options open to death penalty
appellants.

In 1987, in a 5-to-4 ruling, the Court
ruled that the death penalty was consti-
tutional despite statistics showing that
killers of white people are far more
likely to be executed than killers of
black people. Mr. McCleskey is black;
Officer Schlatt was white. The ruling,
described at the time as the most im-
portant death case in 11 years, elimi-
nated the last sweeping legal challenge
to the death penalty. ° ue

Hastening Pace of Executions":

In 1990, in a 6-to-3 .ruling on his
second appeal, the Court sharply’ cur-
tailed.the ability of death row inmates
and other state prisoners to file multi-
ple appeals. A Federal judge had ruled
in Mr. McCleskey’'s favor, saying the
sentence had been tainted by the prose-

ans was a police informer with some-
thing to gain by his testimony and not
just a disinterested inmate. |: 2:0).

But the United States Court of’ Ap-
peals for the 11th Circuit, in Atlanta,
overturned that finding. The Supreme
Court, ruling that the claim should
have been raised earlier, upheld. the
appellate ruling in a finding that “is

pace of executions. ' “age Nas

Lawyers today argued that:-Mr.
McCleskey’s sentence reflected a taint-
ed legal process and asked’ that: his

commuted to life. Central to their’ pre-
sentation were the statements from
two jurors, Mr. Burnette: and -/Jill
Darmer, that the information withheld
from them compromised ‘the process:
Ms. Darmer called the proceedings
“an outrage.” ' “

Robert Stroup, one of Mr. McCles-
key’s lawyers, said, ‘‘Jurors are sup-
posed to be given the truth, the whole
truth, and they just didn’t get it.”

Remembering the Crime

But family members and friends of
the slain officer said that after 13
years, the process had gone on long
enough. They said they had no doubt
Mr. McCleskey was the killer. Mr.
McCleskey, a former factory worker,

‘

was convicted of a string of armed| °
robberies in 1970 and was given three | |
life terms but was paroled after seven |,.'

years.

The Georgia Attorney General, Mi-|-
chael Bowers, said in a telephone inter- |.’

view that it is a basic tenet of law that
jurors cannot impeach their own ver-
dicts. The jurors, he said, were obvious-

ly influenced by the defense team’s| :

efforts, and he said the parole board
should give little weight to their state-
ments. i

“The problem here is we wait so
long, we forget the tragedy, the’horror,
and the barbarity of the crime in the
first place,” he said. ‘‘We had a young

policeman in the flower of his lifel.

gunned down with no compunction
whatsoever, and now we hail this guy
as the poster child for Amnesty Inter-
national. It’s ridiculous.” ’ ‘sue

cution’s failure to reveal that Mr. Ev- |

likely to dramatically speed ‘up: the.

execution be stayed and his sentencé | .

‘

+

Defense lawyers provided records’
from the state prison in Jacksofi-and
statements from clergymen and rela-
tives indicating that Mr. McCleskey
had been an exemplary inmate and had
been active in the prison’s religious
activities. Prisgn officials have de-
scribed him as a peacemaker, and a
sister, Emma Jo Ballard, said she be-
lieved he would become a minister if
released.

Faith Froma Minister .

The Rev. George Worth, pastor of
First Presbyterian Church in Atlanta,
has come to know Mr. McCleskey
through his prison work. “I believe
what he says,”’ he told the parole board.
“| believe Warren McCleskey is a man
of integrity and faith, that he’s a gentle
man who is not violent and did not
commit this crime.” ‘

Friends and family members of Offi-
cer Schlatt were not impressed. +, ": #

“T believe he’s become a Christian,
and I’m glad that happened,” said Mrs.
Swanner of Mr. “McCleskey. ‘But
Christians have to pay for their sins

also.” ‘ ms): fee

i
P]
th,

Toe


Excerpts From Court Opinions

Special to The New York Times

. WASHINGTON, April 22 — Following are excerpts from opinions by mem-
_bers of the Supreme Court in a decision today upholding Georgia’s death pen-
_alty process against charges of unconstitutional racial discrimination. Justice
‘Lewis F. Powell Jr. wrote the majority opinion, joined by Chief Justice William
_H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and Antonin

-opinion, joined by Justice Blackmun.

. This case presents the question
‘whether a complex statistical study
.that indicates a risk that racial con-

‘ing determinations proves that peti-
‘tioner McCleskey’s capital sentence
“is unconstitutional under the Eighth
-or 14th Amendment.
McCleskey, a black man, was con-

.victed of two counts of armed rob-
-bery and one count of murder in the
Superior Court of Fulton County, Ga.,
-on Oct. 12, 1978. McCleskey’s convic-
.tions arose out of the robbery of a fur-
-niture 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. McCles-

_ wey secured the front of the store by
rounding up the customers and forc-
ng them to lie face down on the floor.
‘The other three rounded up the em-
ployees in the rear and tied them up

with tape. The manager was forced at
gunpoint to turn over the store re-

ceipts, his watch, and $6.

During the course of the robbery, a
olice officer, answering a silent
ilarm. entered the store through the

fron door. As he was walking down

iy he center aisle of the store, two shots
fk: jwere fired. Both struck the officer.

as arrested in connection with an
nrelated offense. He confessed that
had participated in the furniture
Store robbery, but denied that he 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 description
frat Me the description of the gun

r Several weeks later, McCleskey

at McCleskey had carried during

_ithe robbery.- The: state also’ intro-
i yduced the testimony of two witnesses
0 had heard McCleskey admit to
‘ithe shooting. :

‘Siderations enter into capital sentenc-.

One hit him in the face and killed him..

Scalia. Justice William J. Brennan Jr. dissented, joined by Justice Thurgood
- Marshall and in part by Justices Harry A. Blackmun and John Paul Stevens.
Justice Blackmun dissented separately, joined by Justices Marshall and Ste-
“vens and in part by Justice Brennan. Justice Stevens wrote a third dissenting

mae From the Opinion
By Justice Powell

F Conviction and Sentence |

, The jury convicted McCleskey. of
‘murder. At the penalty hearing, the
jury heard arguments as to'the ap-
propriate sentence. ... . sn ois 2 pa NN
- The jury recommended that he be
-Sentenced to death on the murder
-charge and to consecutive life sen-
tences on the armed robbery charges.
The court followed the jury’s recom-
mendation and sentenced McCleskey
to death. * "
On appeal, the Supreme Court of
Georgia affirmed the convictions and
the sentences. ... This Court denied a
petition for a writ of certiorari. ...
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. After holding an evi-
dentiary hearing, the Superior Court
denied relief. ... The Supreme Court
of Georgia denied McCleskey’s appli- -
cation for a certificate of probable. .
cause to appeal the Superior Court’s
denial of his. petition and his Court
again denied certiorari... .

‘McCleskey next filed a petition for |
a writ of habeas corpus in the Federal
District Court of the Northern ‘Dis-
trict of Georgia. His petition raised 18.
Claims, one of which was that the
Georgia capital sentencing process is
administered in a racially discrimi- |
natory manner in violation of the |
Eighth and 14th Amendments to the
United States Constitution.

F-23-87

Ris

Statistical Survey
In support of his claim, McCleskey
| proffered. a_ statistical study per-
i formed by Professors David C. Bal-
; dus, George Woodworth and Charles

: Pulanski, (the Baldus study) that

| purports to show a disparity in the

i imposition of the death sentence in

| Georgia based on the race of the mur-

} der victim and, to a lesser extent, the _

! race of the defendant. r

; The Baldus study is actually two so-

| phisticated statistical studies that ex-

} amine over 2,000 murder cases that

‘occurred in Georgia during the
_ | 1970’s. The raw numbers collected by
-! Professor Baldus indicate that de-

| fendants charged with killing: white

| persons received the death penalty in
| 11 percent of the cases, but defend-

} ants charged with killing blacks re-

| ceived the death penalty in only 1 per-
i, cent of the cases. The raw numbers
' also indicate a reverse racial dis-
} parity according to the race of the de-
| fendant: 4 percent of the black de-
fendants received the death penalty,
as opposed to 7 percent 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 pen-
' alty was assessed in 22 percent of the
| cases involving black defendants and
'
i

nT
‘

1 white victims; 8 percent of the cases
involving white defendants and white
| Victims; 1 percent of the cases involv-
| ing black defendants and black vic-
, tims; and 3 percent of the cases in-
‘ volving white defendants and black
' victims. ;
i . Similarly, Baldus found that prose-
| cutors sought the death penalty in 70
1 percent of the cases involving black
defendants and white victims; 32 per-
1 cent of the cases involving white de-
' fendants and white victims; 15 per-
+ cent of the cases involving black de-
fendants and black victims; and 19
; percent of the cases involving white
defendants and black victims.
» Baldus subjected his data to an ex-

From Dissenting Opinions
; 4A be ae ie oo its"

_.” ByJustice Brennan

Adhering. tomy. view that the.death..

penalty is in all circumstances crue
and unusual punishment forbidden by
the Eighth and 14th Amendments, I
would vacate the decision below inso-
far as it left undisturbed the death
sentence imposed in this case. ...
Murder defendants in Georgia with
white victims are more than four
times as likely to receive the death
sentence as are defendants with
black victims. ... Nothing could con-
vey more powerfully the intractable
reality of the death penalty: ‘‘that the
effort to eliminate arbitrariness in
the infliction of that ultimate sanction —
is so plainly doomed to failure that it
—.and the death penalty — must be
abandoned altogether.”’..: ;
Even if I did not hold this position,
however, I would reverse the Couft of
Appeals, for petitioner McCleskey’:
has clearly demonstrated that ‘his .

death sentence was imposed in viola-. ’. differ, however, in one respect from

tion of the Eighth and 14th Amend- */

ments. ... McCleskey has demon-
strated precisely the type of risk of
irrationality in sentencing that we
have consistently condemned in our
Eight Amendment jurisprudence.

At some point in this case, Warren
McCleskey doubtless asked his law-
yer whether a ae was likely to sen-
tence him to die. A candid reply to
this question would have been dis-
turbing. First, counsel would have to
tell McCleskey that few of the details
of the crime or of McCleskey’s past
criminal conduct were more impor-
tant than the fact that his victim was
white. ... Furthermore, counsel.
would feel bound to tell McCleskey
that defendants charged with killing
white victims in Georgia are 4.3 times
as likely to be sentenced to death as
defendants charged with killing
blacks. ... In addition, frankness
would compel the disclosure that it
was more likely.than not that the race
of McCleskey’s victim would deter-
mine whether he received a death
sentence: 6 of every~11 defendants
convicted of killing a white person
would not have received the death _
penalty if their victims had been
black. ... Finally, the assessment
would not be complete without the in-

formation that cases. ifvolving black

defendants and white victims are
more likely to result in a.death sen-
tence than cases featuring any other
racial combination of defendant and
victim. The story could be told ina

not fail to grasp its essential narra-

a4

not justify ignoring its force.
It is important to emphasize at the

outset that: Court’s observation that. .

McCleskey cannot prove the influ-
ence of race on any particular sen-
tencing decision is irrelevant in
evaluating his Eighth Amendment
claim. Since Furman v. Georgia,
(1971), the Court has been concerned
with the risk of the imposition of an
arbitrary sentence, rather than the
proven fact of one.

Defendants challenging their death
sentences thus never have had to
prove that impermissible considera-
tions have actually infected sentenc-
ing decisions. We have required in-
stead that they establish that the sys-
tem under which they were sentenced

posed a significant risk of such an oc-
/ currence. McCleskey’s claim does

_these'earlier cases: It is the first to
ase.a challenge not on speculation
about how a system might operate,
but ‘on empirical documentation of
how it does operate. '

Risk} eld Intolerable —

... Close analysis of the Baldus
study, however, in light of both statis-
tical principles.and human experi-
ence, reveajs that the risk that race
influenced 'McCleskey’s sentence is
intolerable by any imaginable stand-
ard.

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 lifé had his vic-
tim been black. The study distin-
guishes between those cases in which
(1) the jury exercises virtually no dis-
cretion becausé the strength or weak-
ness of aggravating factors usually
suggests that only one outcome is ap-
propriate; and ( cases reflecting an
“intermediate” level of aggravation,
in which thd jury has considerable
discretion:in: choosing a sentence.
McCleske’$ case falls into the inter-

mediate range. In such cases, death is _

imposed in#34 percent of white-victim
crimes. and 14 percent of black-victim

crimes, a‘difference of 139 percent in '

the rate’ éf imposition of the death’
penalty.:In other words, just under 59
percent — almost 6 in 10 — defend-

variety of ways, but McCleskey could { ants comparable to McCleskey would

‘not have received the death penalty if

tive line: There was.a significant: j their victims had been black.

... Over half — 55 percent. — of de-

chance that race would play a promi-' * fendants in white-victim crimes in

nent role in determining if.he lived or
died. lg Sota
Race and Sentencing Process

The Court today holds that Warren

McCleskey’s sentence was constitu-

tionally imposed. It finds no fault in a
system in which lawyers must tell

* their clients that race casts a large

shadow on the'capital-sentencing pro-
cess. The Court arrives at this conclu-
sion by stating that the Baldus study:

‘cannot “prove that race enters into

any capital-sentencing decisions or
that race was a factor in McCleskey’s
particular case.’’’... The Court’s
evaluation of the significance of peti-
tjoner’s evidence is fundamentally at
odds with our consistent concern for
rationality in capital sentencing, and

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 victim is a
powerful explanation for variation in
death sentence rates — as powerful
as nonracial aggravating factors
such as a prior murder conviction 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 pronounced dis-

- parity by race. , : ie

‘the considerations that the majority

“"jnvokes to discount that evidence Can-

demnation. 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.”...

McCleskey’s argument that the
Constitution condemns the discretion
allowed decision makers in the Geor-
gia capital-sentencing system is anti-
thetical to the fundamental role of

discretion in our criminal justice sys--

tOmt..:..
Process of Sentencing

At most, the Baldus study indicates
a discrepancy that appears to corre-
late with race. Apparent disparities
in sentencing aré an inevitable part of
our criminal justice system. ... Any
mode for determining guilt-or punish-
ment “has its weaknesses and the
potential for misuse.” ...
these imperfections, our consistent
rule has: been that constitutional
guarantees. are met when ‘‘the mode
[for determining guilt or punish-
ment] itself has been surrounded
with safeguards to make it as fair as
possible.”

vidious.

In light of the safeguards designed |

to minimize racial bias in the process,

the fundamental value of jury trial in |

our criminal justice system, and the

criminal defendants, we hold that the
Baldus study does not demonstrate a
constitutionally significant risk of ra-
cial bias affecting the Georgia capi-
tal-sentencing process.

Two -additional concerns inform
our decision in this case. . First,

cal conclusion, throws into serious

question the principles that underlie |
our entire criminal justice system. ;

The Eighth Amendment is not limited

Despite’

... Where the discretion
that is fundamental to our criminal |
‘process is involved, we decline to as-
sume that what is unexplained is in--

‘benefits that discretion provides to |

_McCleskey’s claim, taken to its logi- .

in application to capital punishment, |
but applies to all penalties. . .. Thus, if

we accepted McCleskey’s claim that
racial bias has impermissibly tainted
the capital-sentencing decision, we
could soon be faced with similar
claims as to other types of penalty.
Moreover, the claim that his sen-
tence rests on the irrelevant factor of
race easily could be extended to
apply to claims based on unexplained

discrepancies that correlate to mem- |
bership in other minority groups, and |

even to gender. ... Also, there is no

logical reason that such a claim need |

be limited to racial or sexual bias.
If arbitrary and capricious punish-

ment is the touchstone under the |

tighth Amendment, such a claim
ould — at least in theory — be based
upon any arbitrary variable, such as

. |
vv.
oe

the defendant’s facial characteris-
tics, or the physical attractiveness of
the defendant or the victim, that
some statistical study indicates may .
be influential in jury decision making.
As these examples illustrate, there is
no limiting principle to the type of
challenge brought by McCleskey.

The Constitution does not require
that a state eliminate any demonstra-
ble disparity that correlates with a

potentially irrelevant factor in order ,
to operate a criminal justice system ..
that includes capital punishment. As
we have stated specifically in the con- ~:

text of capital punishment, the Con-,
stitution does not “‘plac[e] totally un-.
realistic conditions on itsuse.”.... |,

Second, McCleskey’s arguments
are best,presented to the legislative
bodies. It is not the responsibility
or indeed even the right — of this

6a 8

Court: to determine the appropriate.
punishment for particular crimes. It.

is the legislatures, the elected repre-
sentatives of the people, that. are
“constituted: to respond to the. will

and consequently.the moral values of _

the people.’”’ ... Capital punishment is
now the law in more than two-thirds
‘of our states.

i It.is the ultimate duty of courts to. .
determine on a case-by-case. basis.
' whether. these laws are applied con-
sistently with the Constitution. De- .

spite McCleskey’s wide-ranging ar-

guments.that basically challenge the .

validity of capital punishment in our

{ multiracial society, theonly question
-before us is whether in his case.....

the law of Georgia was. properly ap-

plied. We agree. with the District

Court and the Court of Appeals for the
llth Circuit that this was carefully
and correctly done inthiscase. —

>
1355

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|

tensive analysis, taking account of
230 variables that could have ex-

plained the disparities on nonracial

grounds, One of his models concludes
. that, even after taking account of 39
nonracial variables, defendants
charged with killing white victims
were 4.3 times as likely to receive a
death sentence as_ defendants

_ charged with killing blacks. Accord-

‘ing to this model, black defendants
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 great-
est likelihood of receiving the death
penalty. .

District Court Action

The District Court ... 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.” ... As
to’ McCleskey’s 14th Amendment
claim, the court found that the meth-

~-odology of the Baldus study was

flawed in several respects. ... Ac-
cordingly, the Court dismissed the
petition. :

_ The Court of Appeals for the 11th
Circuit, sitting en banc, ... assumed
the validity of the study itself and ad-

_ dressed the merits of McCleskey’s

Eighth and 14th 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 dispari-
ties existed at a less substantial rate
in death sentencing based on race of
defendants, and that the factors of
race of the victim and defendant were
at work in Fulton County.”

. Even assuming the study’s validity,

the Court of Appeals found the statis-
tics “insufficient to demonstrate dis-
‘criminatory intent or unconstitu-
). ‘tional discrimination in the 14th
Amendment’ context, [and] insuffi-.
. cient to show irrationality, arbitrari-
ness and capriciousness under any
_ kind. of Eighth Amendment. analy-

-Sis.”?

ie fee eine ee

; wee. s

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... and now affirm.
__, McCleskey’s first claim is that the
Georgia capital punishment statute
violates the Equal Protection Clause

“of the 14th Amendment. He argues.

| that race has infected the administra-

-

''black murderers are more likely to

, tion of Georgia’s statute in two ways:

persons who murder whites are more
likely to be sentenced to death than
persons who murder blacks, and

be sentenced to death than white

; murderers.
te As a black defendant who killed a

a

| -The Court of Appeals affirmed the

Equal Protection Principle

Our analysis begins with the basic
principle that a defendant who al-
leges an equal protection violation
has the burden of proving ‘‘the exist-

ence of purposeful discrimination.” |
... A corollary to this principle is that

a criminal defendant must prove that - | Baldus study demonstrates that the

the purposeful discrimination ‘‘had a
discriminatory effect” on him. ...

‘Thus, to prevail under the Equal Pro-

tection Clause, McCleskey must
prove that the decision makers in his

case acted with discriminatory pur-
McCleskey’s claim that

.these statistics are sufficient proof of .

‘discrimination, without regard to the

‘ facts of a particular case, would ex-

pose. ...

tend to all capital cases in Georgia, at
least where the victim was white and
the defendant is black.
The Court has accepted statistics
as proof of intent to discriminate ‘in
certain limited contexts....
But ... the application of an infer-

. ence drawn from the general statis-

tics to a specific decision in a trial
and sentencing simply is not com-
parable to the application of an infer-

_ ence drawn from general statistics to

a specific venire selection or Title VII
case. In those cases, the statistics re-

late to fewer entities, and fewer vari-

ables are relevant to the challenged

decisions.

e

McCleskey’s _ statistical proffer
must be viewed in the context of his
challenge. McCleskey challenges
decisions at the heart of the state’s
criminal justice system. ‘‘[Ojne of
the 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 murder.” ...
Implementation-of these laws neces-
sarily requires discretionary judg-
ments; .. °..°

Because discretion is essential to
the criminal justice process, we
would demand exceptionally clear
proof before we would infer that the

discretion has been abused. The.
unique nature of the decisions at issue’

in this case also counsel against
adopting such an inference from the
disparities indicated by the Baldus
study. Accordingly, we hold that the
Baldus study is clearly insufficient to

-alty constitutionally may

support an inference etd of the
decision makers in McCleskey’s case

| acted with discriminatory Phrpose.

McCleskey also argues | that the

Georgia capital sentencing system

| violates the Eighth Amendment....

In light of our precedents Under the
Eighth Amendment, McCleskey can-
not argue successfully thaf'his sen-
tence is ‘disproportionate: to the
crime in the traditional sense.”’. .. He

does not deny that he committed a.

‘planned
s Court
ath pen-
imposed.
... McCleskey argues that| the sen-
tence in his case is disproportionate

murder in the course of
robbery, a crime for which
has determined that the d

‘to the sentences in other ‘murder

| cases.

Although our decision in Gregg as
to the facial validity of the Georgia
capital punishment statute appears
to foreclose’ McCleskey’s

|. tionality. argument, he further con-.

- now address this claim.

“tends that the Georgia capith] punish-

ment system is arbitrary
cious in application, and therefore his
sentence is excessive, because racial
considerations may influence capital
sentencing decisions in Gegrgia. We

_ * Evaluation of Challenge

To evaluate McCleske 3 chal-
lenge, we must examine exatily what
the Baldus study may shdy. Even

’ Professor Baldus does not ‘contend

| that his statistics prove thal race en-

ters into any capital senten¢ing deci-
sions or ‘that race was. n
McCleskey’s particular cass.‘ Statis-
tics at most may show onlyia. likeli-

course, some risk of racial prejudice

influencing a jury’s decision in a’

criminal case....
Because of the risk that the factor

of race may enter the criminal jus-
in ‘‘un-

tice process, we have engag
ceasing efforts’? to eradicate racial
prejudice from our criminal justice
“system. ... It is the jury that is a
criminal defendant’s funfamental
‘protection of life and liberty against
_race or color prejudice.”’...
The capital sentencing decision re-
quires the individual jurors to focus
their collective judgment on the
unique characteristics of a particular
criminal] defendant. It is not surpris-
ing that such collective judgments
often are difficult to explain. But the

inherent lack of predictability of jury

decisions does not justify their con-

»yWhite. victim, McCleskey claims that
the Baldus study demonstrates that -
she, was discriminated against be- :
“cause of his race and because of the

“Rann Af ltH 2


THE NEW YORK TIMES,

MONDAY, MARCH 23, 1987

Y =.

High Court to Decide Whether Death Penalty Discriminates Against Blacks

By KENNETH B. NOBLE
Special to The New York Times

ATLANTA, March 19 — On. the
-evening of May 13, 1978, ‘four men en-
ztered the Dixie Furniture Store here,

secured the -showroom by. forcing
everyone to lie face down on the floor,
and as they searched for cash, one of
them shot and killed a police officer. :

Three of the men were’ sentenced to

varying prison terms for the crime,
while another, Warren McCleskey, was
convicted of murder and sentenced to
death. -

- Like most of those. now on Georgia’s
death row, Mr. McClesky is black, and
his victim was white. He is extraordi-
nary only in that his appeal is the first
to be heard. by the United States Su-
preme Court based on the contention
that,. Georgia's... death-sentencing pro-
ck -unconstitutionally infected by

discrim ination.

“Race of Victim Called Crucial |

To accept the full implications of Mr.
McClesky’s argument, however, the
‘Court, which is expected to rule as soon
as this week, might have to be pre-
pared to throw out the capital sentenc-
es system not only iri Georgia, but sino

Other, states.

: se McCleskey's sentence, ‘handed’
a es a jury. of 11° whites and one
-black, "iS ‘viewed by opponents of the
death ‘penalty as perhaps ° the: last
broad-based challenge to the way the
death penalty is imposed in most states
and the last opportunity to save many
of the 1,874 convicts now on death row.

Individual death sentences will con-
tinue to be appealed, no matter how the
Supreme Court acts on the case. But if
the Court decides against. Mr. McCles-
key, future appellants: will essentially
be limited to arguing that.a miscar-
riage of justice occurred : in their
particular cases: -;

- Mn ‘McCleskey’ s° “lawyers argued
that blacks who killed whites: were, by
far the most: stikely; conyicts, to. be, sen-
tenced to die.” ;

an

Sie

“Race is the pre-eminent factor in
deciding who lives and who dies in capi-
tal punishment cases, particularly here
in the death belt states,’’ said Steven B.
Bright, an attorney. with the Southern
Prisoners. Defense: Committee, ‘which
represents indigent capital defendants.

“When ‘you kill the organist at the
Methodist church who is white, you’re
going to get the death penalty, but if
you kill the black Baptist organist, the
likelihood is that it’ll be plea bargained
— to a life sentence,” Mr. Bright
sai

This argument has. provoked in-:

creasingly bitter dissent from support-
ers of the death penalty. Daniel J.
Popeo, general counsel of the Washing-
ton Legal Foundation, a conservative
public interest law. organization, called
Mr. McClesky’s case ‘‘a concocted ef-
fort on the part of the anti-death pen- =

alty lobby to ‘block the enforcement off

the law.’

“If there:wasn’t this excuse to block
the death penalty, they’d manufacture’
another,” Mr. Popeo said. ‘‘The bottom
line is that they’re running out of legal
Stalling tactics.”

Attack on the South

The ‘case has also disturbed: some
civic leaders here, who see it as an-
other in a long history of unwarranted
attacks on the South’s criminal justice
system.

“This part of the country, and Geor-
gia in particular, is certainly not free
from taint, but to say that, today, Geor-
gia’s. criminal justice system is per-
meated by racial discrimination, is ab-
solutely inaccurate,” said Michael
Bowers, Georgia’s Attorney General.

The appeal by the NAACP Legal De-
fense and Educational Fund Inc. in
McCleskey v. Kemp, is based on both
the Eight Amendment’s prohibition
against cruel and unusual punishment
and the 14th Amendment’s senna
of equal protection.

ted Press
Warren McCleskey, who is on
‘death row in Georgia for killing a
police officer i in'a robbery.

Mr. sicibies argument that his

sentence .was. tainted by racial dis-

crimination is not based on allegations
of discriminatory acts by a prosecutor
or judge, but.on statistics.

Since the Supreme Court first upheld
some revised: death penalty laws in|:
1976 after. striking :down all: existing
death penalty laws four years earlier,
there have been 70. executions: 1 in
1977, 2 in 1979,.1 in. 1981, 2 in 1982, 5 in
1983, 21 in 1984, 18 in 1985, 18 in 1986 and
2 sc far this year.

Nearly All Murdered Whites

Forty two of those executed, or 60
percent, were black; 26 were white and
2 were Hispanic.

What is more striking, however, than
the race of those executed is the race of
their victims. Although blacks and
whites are the victims of homicide in
roughly equal numbers, about 95 per-
cent of those executed since 1977 have
been convicted of murdering whites, as
were 69 percent of those remaining on

. death row...
‘Those figures provide the context for

sd gh Medea Mad oh oy

an independent study, of the death pen-
alty in Georgia that is at the heart of
the case now before the Court. David
Baldus, a law professor at the Univer-
sity of Iowa, studied the 2,484 homi-
cides that occured in Georgia from
1973 to 1979.

In those cases, 1,665 defendants were
black and 819 were white. Blacks were
the victims of homicides in about 61
percent of the cases, whites in 39 per-
cent.

230 Factors Identified
The Baldus study did not find that

black defendants overall were more

likely to get the death sentence than
white defendants. But it did find that of
the 2,484 murders in Georgia, blacks
who had killed whites were sentenced
to death at three times the rate of
whites who killed blacks.

Professor Baldus identified 230 fac-
tors, such as. the viciousness. of. the
crime, the quality of the evidence and
the defendant’s: criminal background,
that figure in a sentencing determina-
tion. He focused on those murders that
were neither the most most~nor the
least notorious, the “‘midrange cases’”’
in which the greatest jury discretion
wwasexercised.

He concluded that in the 128 cases in
which a death sentence was imposed,
22 percent of black defendants who had
killed whites were sentenced to death,
compared to 3 percent of white defend-
ants who had killed blacks, 8 percent of
whites who had killed whites and 1 per-
cent of blacks who had killed blacks.

Court Leery of Social Science

Still, Mr. McCleskey faces a formida-
ble obstacle in his effort to overturn his
conviction based on statistics: the his-
torical reluctance of judges to use so-
cial science as a basis for legal prece-
dent in criminal cases. Courts have ac-
cepted arguments based on such statis-
tics in cases involving employment and
housing discrimination, .for example,
but the Supreme Court: has never. ap-
plied such analysis to criminal law.

Judge Owen Forrest, a United States
district judge who rejected Mr.
McCleskey’s sociological argument in
a 1984 ruling, said: ‘“‘As a general
proposition, the scholarly literature
suggests that it is troublesome”’ to base
decisions largely on such statistics ‘‘in
that the law can be made to change as
new studies or new scientific develop-
ments come about.”

The United States Court of Appeals
for the 11th Circuit also rejected Mr.
McCleskey’ s challenge in a 9-to-3 deci-
sion in 1985. The court said it assumed
the Baldus study to be valid, but held
that the data failed as a matter of law
to establish a constitutional violation
because there was no proof of deliber-
ate racial- prejudice by an identifiable
source.

In oral arguments last October be-.
fore the Supreme Court,.a lawyer for.
the state of Georgia hypothesized that.
the apparent racial disparities could be
explained by the generally more ag-
gravated nature of murders with white
victims.

An Alternative epiientaik

Mary Beth Westmoreland, an assist-
ant Georgia attorney general, said the
statistics did not necessarily prove dis-
crimination because blacks were more
often killed in ‘family. disputes, lover
disputes,”’ bar fights and the, like,
whereas whites were more often killed
in robberies and other situations more
likely to provoke “‘the moral outrage of
the community”’ and the jury.

An underlying theme throughout the
various arguments has been Georgia’s.
singular role in the nation’s long debate
over capital punishment. In a 5-to-4
decision, the Supreme Court halted ex-
ecutions in 1972 because it found that
judges and juries were imposing death
sentences in an ‘‘arbitrary,’’ ‘‘capri-
cious,” and ‘‘discriminatory”’ fashion.
That landmark decision, Furman v.
Georgia, came in a Georgia case. ,

Four years. later, in a momentous
decision _ that. restored the constitu-
tional underpinnings of. ah penalty,

: ~~ “tAssociated Press
Michael Bowers, Georgia’ s Attor-
ney General, said it “is absolutely
inaccurate” to say the’ state’s
criminal justice system is per-
meated by racial discrimination.

the Court ruled in: Cheese Vv. Georgia

that capital. punishment is constitu- —
tional. if imposed according to strict,

Var eae,

procedural safeguards:

To opponents of the: ‘death penalty,
the fact that’ blacks and other minori-
ties continue to bear the brunt.of capi-
tal punishment is evidence that little
has changed since the Furman and
Gregg decisions.

Bryan Stevenson, an attorney for the
Southern Prisoners Defense Commit-
tee, noted that the Supreme Court said
in its Gregg decision that it would not
bar the death penalty without strong
proof that its use was discriminatory.

“Now we’re back, and we’re saying,
here’s the proof that racial discrimina-
tion is as pervasive and invidious now
as it was, and has always been,’’ Mr.
Stevenson said. - : habe
ee

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Death Penalty Appeal

Two years ago, the U.S. Supreme
Court rejected the appeal of Georgia
death row inmate en McCleskey,
who argued unsuccessfully that the appli-
cation of the state’s death penalty was
racially biased.

McCleskey’s case may be headed
back to the high court — this time in a
dispute stemming from the use of a jail-
house informant to convict McCleskey.

At issue in McCleskey v. Zant, 88-
8085 and 89-8085, in the Atlanta-based
llth U.S. Circuit Court of Appeals, is
whether McCleskey’s lawyers abused
the wnt proces by raising a Massiah is-
sue based on the informant’s testimony
in their state habeas petition, then drop-
ping it in their first federal habeas petition
before raising it again in a second federal
habeas petition.

In Massiah v. United States, 377 U.S.
201 (1964), the U.S. Supreme Court
ruled that authorities’ use of testimony
gained surreptitiously by a police infor-
mant violated a defendant’s Sixth
Amendment right to counsel.

Legal experts say the case raises seri-
ous questions about how far a lawyer
must go to investigate possible claims in

SS

post-convictions appeals — and whether
an attorney can ever drop a claim once it
is raised.

Some also see the case as a preview of
the kinds of rulings that might be expect-
ed if the recommendations of a commis-
sion headed by former U.S. Supreme
Court Justice Lewis F. Powell Jr. to limit
habeas appeals become law.

Defense lawyers in McCleskey contend
authorities concealed information about
the informant. They weren't able to de-
velop the Massiah challenge until a
change in Georgia’s open meetings law
led them to previously undiscovered tes-
timony that showed jail authorities inten-
tionally placed a known informant in the
cell next to McCleskey, said one of
McCleskey’s lawyers, John Boger of the
NAACP Legal Defense Fund.

Prosecutors in the case continue to
deny that the informant was placed in the
cell or that anything was concealed from
McCleskey’s attorneys.

Buta federal district court judge grant-
ed McCleskey’s writ in late 1987, ruling
that his lawyers had shown a clear Mas-
siah violation and that the informant’s
testimony was crucial to the conviction.

7

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Gs RIMINAL LAW

by Martin Berg

NoTEBOOK

The Massiah claim was not an abuse of
the writ because it was based on new evi-
dence, ruled Judge J. Owen Forrester.
However, in November, a three-judge
panel of the 11th Circuit reversed the dis-
trict court judge’s opinion in McCleskey

the district court ‘‘abused its discretion
in failing to dismiss McCleskey’s claim as
an an abuse of the writ’’ because he de-
liberately abandoned his Massiah claim in
his first federal habeas writ.

The panel said McCleskey’s lawyers
should have been able to track down the
undiscovered testimony in 1981 when .
the first federal habeas was filed. ‘‘A pe-
titioner and his counsel may not circum-
vent the abuse of the wnt doctrine by
failing to follow through with an investi-
gation and then later claiming that the
claim could not have succeeded earlier on
the facts as then known. It will only be
possible to avoid piecemeal litigation if

counsel is required to make thorough in-
‘vestigation of the facts at the time of the
tpetitioner’s first petition for habeas
_,corpus.””

McCleskey’s lawyers are seeking a re-

> view by the full 11th Circuit.
v. Zant, 890 F.2d 342. The panel ruled =

- Inan interview, Boger stressed that
‘the lawyers had conducted an intensive

“investigation in 1981 — but the informa-

‘tion that led to the Massiah claim was
concealed by prosecutors and police.

“We suspected there was something

| there,” Boger said. ‘‘But we had swomm
' denials from the state.’’

4 While they had interviewed many jail-

ers in 1981, they had not interviewed the
one jailer whose testimony ultimately led
them to the belief that the informant had
been moved next to McCleskey, Boger
‘ said.
’ “The underlying craziness of the case
-is that if the decision stands, you would
‘have to disbelieve every statement

uments in Massiah Case

that was made by the state,’’ Boger said.
“A system can’t work when you pre-
sume bad faith on the part of the state.’’

Among the three judgés who sat on
the 11th Circuit panel was Paul Roney,
who served as a member of the Powell
Commission, which came up with a num-
ber of recommendations that — if they
became law — would limit habeas
appeals.

Boger suggested that the decision,
which he called extraordinary, was a pre-
view of how courts would rule if the Pow-
ell Commission recommendations
became law. ‘‘Those recommendations
face substantial opposition, though,’’
Boger pointed out. ‘‘It’s far from
settled.”’

In an amicus brief filed on behalf of
death penalty defense resource centers
in Alabama, Florida and Georgia, attor-
neys argue that the llth Circuit’s deci-
sion encourages states to conceal
violations of a defendant’s constitutional
rights. ‘‘The expectation that the police
and prosecutors will voluntarily honor
the constitutional nights of criminal de-
fendants — and in the process serve the
higher goal of justice — will be seriously

‘O3T9

OIL
i

undermined if the McCleskey rule is al- FU

_lowed to stand,’’ the attorneys argue in

the amicus. ‘‘The McCleskey rule will <>
have this effect because it insulates the
police and prosecutors from the adverse S

consequences of violating a defendant’s a
rights.’”” ct

The decision also imposes an unprece- O
dented strict liability standard: of perfor-
mance on attorneys that would make
cases more time-consuming for the de-,
fense lawyers, and make finding attor-
neys to handle capital case appeals more nh
difficult, the brief argues. ‘er

Prosecutors say the information that *y °
McCleskey’s attorneys eventually found, |,
through the Georgia open meetings law, 5
was disclosed to the original trial judge,
by prosecutors at an in camera hearing.

The judge found that it wasn’t exculpa-
tory and didn’t need to be disclosed toe
the defense, said Mary Beth Westmore-@
land, senior assistant attorney general in
Georgia.

“The panel’s decision is a logical appli-
cation of the law as it exists ight now,”’
Westmoreland said. ‘‘Once they make an
election to drop an issue, that election
ought to have some binding effect.”’

~~

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ri ena ° a

Ruling Avoids Disarray, Experts Say

_ .By LENA WILLIAMS

"Special to The New York Times
WASHINGTON, April 22 — In ruling
jtoday that statistical disparities in the
death-sentencing process do not prove
discrimination against blacks, both
sides agree, the Supreme Court spared
‘the nation’s entire criminal justice sys-

tem months of disarray.

“It essentially would have shut down
the death penalty process across the
country on a short-term basis,” con-
cluded Ronald V. Allen, a professor of
law at Northwestern University who is
a leading expert in evidence and consti-
tutional criminal procedures. ‘‘For
that reason, I was not surprised by the
Court’s action. The Court made clear in
¢its ruling that the death penalty is not
unconstitutional.”’

He said he would have to find other
grounds on which to appeal a similar
case in which both the victim and the
defendant were white.

Dangers in Statistics

Daniel J. Popeo, general counsel of
the Washington Legal Foundation, a
conservative public interest law organ-
ization, said, ‘If you started to look at
statistical and demographic data for
criminal murders, the courts would
have had to look at every case based on
criminal justice data.” |

“People should not get away with
murder, simply because their victim is
white,”’ he said. ‘‘The bottom line is
that general statistics have no place in
the courtroom.”

While foes of capital punishment de-
nounced the decision, supporters of the
death penalty characterized the ruling
as a “major victory’’ for those who be-
lieve that the sentencing process
should not be tainted by allegations of
racial discrimination based on statis-
tics.

Pace of Executions

Opponents of capital punishment
predicted that the Court’s ruling would
quicken the pace of executions of hun-
dreds of convicts now on death row.

It would do so, they argued, by
removing the race defense as a
preeminent factor in capital punish-
ment cases.

In San Francisco, for example, Attor-
ney General John Van de Kamp said
the ruling could lead to the first execu-
tion in California since 1967.

“It’s conceivable that there could be
an execution as a result of this ruling
by the end of the year,” he said, adding
that there are least two people on the
state’s death row to whom the Supreme
Court decision would appear to apply.

But experts cautioned that the pace

of executions would not necessarily||.

rise immediately because many in-
mates still could employ other defen-
sive tactics that are not related to to-
day’s decision.

Nationwide, according to the NAACP
Legal Defense and Educational Fund
Inc., 1,874 inmates were on death row
as of March 1. Of those 777 or 41.5 per-
cent, are black and 944 or.50.4 percent
are white,
| Whites were the victims in about 75

a ae

percent of those cases, blacks in 13 per-
cent. The rest were of other races or
their race was not known. |

New York State does not have a
death penalty. Connecticut has a death
penalty, but has not sentenced anyone
under it. In New Jersey, which has a
death penalty, there are 25 inmates on
death row, 14 of whom are black, 11
white. The state’s method of execution
is by lethal injection.

The case decided today concerned
Warren McCleskey, a black man, who
was convicted in Georgia of the mur-
der of a white police officer during an
armed robbery. Mr. McCleskey was
sentenced to death.

‘Lighter Burden of Proof’

David Baldus, a law professor at the
University of Iowa. said in a telephone
interview from Iowa City: ‘‘It seems to
me that plaintiffs in employment dis-
crimination cases have a lighter bur-
den of proof than do death row inmates.
The opinion seems to suggest that the
level of proof needed to successfully
challenge the death penalty may be im-
possible to meet.”

John Charles Boger, the NAACP
Legal Defense and Educational Fund
lawyer who argued the case before the
Supreme Court, said there are ‘“‘lots of
challenges” left that would affect 10 or
20 cases, but nothing to effectively

challenge the administration of an en-
tire state statute. ,

“I think what comes across through-
out is the reluctance of the Supreme’
Court to interfere with the state’s ad-
ministration of its capital statutes,’’
concluded Mr. Boger. '

Civil rights and civil liberties groups
were highly critical of the ruling, al-
though one expert ,said many of their
black constituents are not opposed to
the death penalty.

“Blacks support the death penalty,”
concluded William Robinson, executive
director of the Lawyers’ Committee
for Civil Rights Under the Law. “‘ They
do not support racial discrimination in

the death penalty and that is what this :

case was all about.”

Dr. Benjamin L. Hooks Jr., executive
director of the National Association for
the Advancement of Colored People,
who is a former criminal court judge,
said his experience had shown that'a
majority of blacks were opposed to the
death penalty because they believed it
was, in fact, applied in a discrimina-
tory manner.

“‘Even those blacks who are in favo}
of it, would not be in favor of today’s
decision,’ he asserted. ‘‘In effect, the
decision says that even if you prove
some vestiges of racism it is not a suffi-
cient parameter to disturb the sys-
tem.”

¢.

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(7 THE NEW YORK TIMES, THURSDAY, APRIL 23, 1987 |

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State under fire
in murder appeal

ASHINGTON - A lawyer for a

Georgia death row inmate yes-
terday accused the state of using an
illegally obtained jailhouse confes-
sion to convict his client and hiding
this information from defense law-
yers. John Boger, arguing before
the Supreme Court in behalf of
Warren McCleskey, said the state
forsnine years withheld from de-

fense lawyers a written statement ~-

from the inmate to whom McCles-
key allegedly confessed to the 1978
slaying of an-Atlanta police officer
in a furniture store robbery. (AP)

n\t 299D yer go)

tric chair Jast week, was no saint or hero..He was a |
robber, ‘part of a gang that shot and killed’ an off-
duty: ‘police. officer during a holdup, Thirteen years ~

later, however, a question reverberates: Did War- |

ren ‘MeCleskey. deserve the chair? ‘fai,
<~ ‘For. the question to outlive him is. a damning
commentary: on capital punishment in the United
States: ;

3 Bich

tionality of executions in 1976, it held out the prom-

ise of punishments determined with fairness and

care;-under: special): procedures and guidelines. .

Death. is. different, the Court recognized, pertriev sy

able..even. when. the state makes: mistakes,
2 iss ‘Further; even the most vengeful. citizen comes

I. to realize there’s a practical limit to capital punish-

ment: ‘Society: would find it hard to execute everyone |
who is technically eligible: With 2,500 killers now on -
death row, it ‘would take an execution a day for eight...

op a ot > }
eee oe) % 4
BS ’ per

Witten: McCleskey’ S. lawyers. proved, in his

first trip to.the Supreme Court, that Georgia courts. _

coridemned blacks who killed whites four times as"
often. as, when, the victim was black. Yet the Court,’
by..a.-5-to-4: vote, ruled in 1987 that ths shameful «
pattern made no difference. 'To succeed, an accused ~

must “prove that’ racial prejudice animated his
“vo Many other Americans are more interested in sure

judge,’ ‘his prosecutor ‘or his jury. =
, “Unable to meet that. impossible burden, Warren
McCleskey’ $ lawyers proceeded to prove something

else; ‘also: alarming: Georgia prosecutors..had.ob-... »
tained’ the’ Most ot Gampeging evidence against him, his;

=
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hen the. Supreme. Court: ‘upheld. hee constitu- 7

years, to clear out the backlog, eae nig jive

“Warren McCleskey Is Dead Seaton

wet im ct nen om

Warren McCleskey, who died in’ Georgia’ Ss elec? i

~alleged ‘admission that he was the tr igeerman, eh
fa. jailhouse informant who was planted by. Atlanta
“ police’ in Violation of Mr. McCleskey’s: ‘rights. The
state hid the informant’s status for a decade, stone-
_ walling defense a to aia out or discredit
his testimony., He GS eS,

« His lawyers thus spared. pa “McCleskey,
for the. ‘moment. Last April ‘the: Supreme Court

ruled, 6 to 3; that they had waited too long to raise
*= the claim, even though they lacked the proof —
~ which the” state was hiding — at the time they were

supposed to raise it. So once again, Warren McCles-

‘key was again scheduled to go to.the electric chair.

Then, just days ago, two former jurors:told the

« Georgia: Board of Pardons and: Paroles*that’their
'. votes to sentence Warren McCleskey to death would

uhave been’ different had .they known the. informant
“was a ‘police plant, with an incentive to bargain for
ideniency. in, his own criminal case: Too late:

“The*only other evidence that’ Mr,; “MeCleskey
“had been’ the gunman came ‘from:an. accomplice to

" the’ robbery. All four holdup men: were ‘legally

Pree aibic for the killing no matter who pulled the.

trigger, but Mr. McCleskey was the only. one execut-
~ ed — on evidence that was illegally obtained, incom-
Pete and questionable. Too little.2 :es(ure

/ Some supporters of the death’ penalty are out-
“raged: that Mr. McCleskey lived. so long, surviving:

through the ingenuity of writ-writing lawyers: But

justice than’in certain death. They are’ ‘left 'to feel

outrage fora different reason, and what makes it’

worse is.that| they cannot look ‘for. pass ‘9 the
7 Supreme epurt of the United States:

SUE eh ah ath

} - = ‘ -

we ate cpm teres

3 NEW YORK TIMES Ba ade i alae LETTERS SUNDAY, SEPTEMBER 29, 1991

| &hy e Nv ew y ork Cimes

{Founded i in 1851

fesgsnprcorts vous


bigest

THE SAN DIEGO ae

Thursday, September 26, 1991

UNITED PRESS INTERNATIONAL

WASHINGTON — His 24 years .
on the Supreme Court could offi-’

cially be ‘over within two weeks,

but Justice Thurgood Marshal! has:
not let -his. lame-duck status in- -
a terfere with a lifelong passion: op-
posing the death penalty. -

| Tuesday. night and yesterday’
_ thorning, Marshall wrote a pair ‘of »

: stinging dissents to a high court de-.
cision to. let. 44-year-old Warren
~ McCleskey die in Georgia’s electric |
_ chair for the 1978 killing of an At-:
- Janta police officer. ;
.McCleskey, who was at the cen-
ter of two Supreme Court decisions

since 1986 that made it more diffi-
cult’ for death-row inmates to ap-
peal their sentences, was executed

at 3:13 a.m. after an eight-hour

| delay and the high court’s refusal to »

grant a stay.

~-' Tn addition to: Marshall, Tilstice
ee Blackmun ‘and Justice John -

aul Stevens also voted to grant a
stay in the execution after McCles-
Key claimed: he was denied an im-

partial clemency hearing.

' Only a fourth vote would have
been needed to save McCleskey’ s
life.

‘ “For the third time this court

‘shall.

Jt stice | Marshall’s dissenton.
death penalty a lifelong stance

disregards Warren McCleskey’s
constitutional claims,” wrote Mar-
“In 1986, McCleskey, an
Afro-American defendant, present-
ed uncontroverted evidence that

Georgia murder’ defendants with

white victims were more than four

times as likely to receive the death

sentence as were defendants with
Afro-American victims.”’

“Despite such clear and convinc-
ing evidence of irrationality in sen-
tencing — irrationality we have
consistently condemned -in our
Eighth Amendment jurisprudence

'“— the court somehow. rejected

McCleskey’s claim and upheld the
constitutionality: of Georgia’s death
penalty,” Marshall wrote.

In that case, the high court said
statistics could not be used in death
penalty cases to show alleged racial
discrimination.

Marshall, 83, the first black Su-

preme Court justice, announced his |

retirement June 27:..
Judge. Clarence Thomas, 43,

President Bush’s choice 'to replace

Marshall, would become the second
black. His nomination is expected
to be voted on by the full Senate
next week. If confirmed, he could
join the court by Oct. 7 in time for

that Wayne Snow, chairman of the

the start of its 1991-92 term. :

Thomas said during recent con- -
firmation hearings he does not op-
pose the death penalty.

Last term, the court used an ap-
peal by McCleskey to place sharp
restrictions on the number of times
some death-row inmates can appeal ~
through the federal courts. That
ruling is expected to have wide-
spread impact and reduce. the
amount of time between a death
sentence and execution for many
convicts.

McCleskey’s lawyers charged

Georgia Board of Pardons and
Parole, said before Monday’s clem-
ency hearing that there was no
chance McCleskey’s sentence
would be changed to life in prison. © |=
They also contended the state’
attorney general had threatened to.
“overhaul” the pardons and paroles:
board if clemency was granted. ~*<
Snow said the panel was not
swayed by the testimony of two
jurors in the original trial who said
they would not have voted for the
death penalty had they known, a
key prosecution witness was an in-
formant. rewarded for his testimo-

ny.

nia == -—


‘THE NEW YORK TIMES, SUNDAY, SEPTEMBER 29, 1991

Aad Ones pipares s sey 5 a ee ee jas

Case Closed —

_ Warren McCleskey, a black man’ -
who was convicted of killinga.)
white Atlanta policeman in 1978,° _: .
twice fought for his life before the
Supreme Court andtwicecame*
away with rulings that made it eas- -.
ier for states to kill those they con-. | -
demned. In a 1987: case he brought,;.

_ the Court:ruled that the death pen-. +
~alty was not unconstitutional just
‘because far fewer people were exe-
cuted for killing blacks than for)...
‘killing whites. Then last year, when ~
Mr. McCleskey argued thatthe = _
prosecution had withheld evidence —
from the jury, the Court rebuffed» !
him with a ruling that sharply cur- -
tailed the ability of state prisoners -
to file multiple Federal appeals.
Mr.-McCleskey’s supporters said :
~ he thus faced execution “‘in viola- os
tion of the Constitution,” He lost .._ ao) _ .

his last Supreme Court battle ata’ ae ie in BG's LOPS pg IEE ROSES spleen PGR Pe
little after 3 A.M. Wednesday, ...
when, after he had already been in
and out of the electric chair once,
the Justices voted 6-to-3 by tele-
phone not to stay his death. Min-
utes later, he was electrocuted. ©

pte edn ae

WoT pon ae ce at hae nce tka ge oe le a patel ot et gta? aby ETA eR Oe sed
PRES DY bes) ce aes webagnrs tE™ PRB Be RPT Deeds 4


|

. : death
Police killer eur Sains killer whose case

Ga. vat . . . *,¢
sae om Court sognies pari
Cah Tow appeals was executed apy | ee, es
after a flurry of last-minute appeals elay

———
eight hours. Warren McCleskey, 44, was
reas jetts the rice rie 3 ee bs ee .
officials started, stopped an ; pe
ion procedures in the confusion over
pion When a final appeal to the ae wore
Court failed, he was put to death at a el
Before he died, McCleskey asked for mi ae
from the family of Atlanta police or r
Schlatt and asked his own family not 4 yi a1
resentful. He also called for an end to the

penalty. |

-_--

2A—Reno Gazette-Journal Thursday, September 26, 1991

Me/10, FReyada_

B6 The Sacramento Bee Final e ‘Saturday, September 28, 1991

SAM.

CR a _____ OPINION

_ C.K. McCLATCHY, editor president, 1883-1936
' WALTER P. JONES, editor, 1936-1974
4 }

Locally owned and ‘edited:for 134 years
AMES McCLATCHY, editor, 1857-1883
) " ELEANOR MCCLATCHY, president, 1936-1978
C.K. McCLATCHY, editor, 1974-1989

GREGORY E. FAVRE, exécutive editor PETER SCHRAG, editorial page editor
‘ FRANK RJ. WHITTAKER, president and general manager

_ The Sacramento Bee

——

| Hurried justice

_& Georgia electric chair the other day.
He’d been convicted of shooting a police offi-
* |. cer during a holdup, hardly an unusual story.
«|: But Warren McCleskey was railroaded into
- |: the chair.
The key witness was a man named Offie
, Evans, who was in jail with McCleskey. Ev-
ans testified that McCleskey.told him he was
» |, the man who did the shooting in the holdup.
‘ | But the prosecution failed.to inform the jury
or McCleskey’s lawyers at the time of trial
that Evans was also a police informant who
had been promised a chance for a lighter
sentence in return for his testimony. Had
they known that, two jurors said, they would
‘ not have convicted. ae
“None’ of that, however, interested either
the U.S. Supreme Court or the Georgia pa-
| role board. Although a federal district judge

‘

T-2F-94 SAT rine biti Ni i

my f hey executed Warren McCleskey in the.

_Tuled that the sentence had been tainted by
_the prosecution’s failure to reveal that Evans
was a police informant, the Supreme Court,
hell-bent on shortening appeals and speed-
ing up executions, upheld the conviction —
not on substance, but because in its view the
appeal had been filed too late. Earlier this
week, the parole board, which knows which
side its political bread is buttered on, reject-
ed McCleskey’s last-minute pleas. —
McCleskey, who is black, will always, be a
footnote in legal history. It was McCleskey
who challenged the constitutionality of the
death penalty on the grounds, amply sup-
ported by statistics, that those who kill
whites are far more likely to get the death
penalty than those who kill blacks. He lost
that challenge in 1987 by a 5-4 vote. With his
execution McCleskey becomes a whole
chapter in the history of injustice.

7O Yc


 1OSP

KAREN HEREZER

10 Ponce de Leon

YSPITALITY is published 11 times a year by The Open
yor Community (PCUS), Inc., an Atlanta community of
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“The majority of those on death row
are poor, powerless, and educationally
deprived. . . This reflects the broad in-
equities within our society, and the in-
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applied. This alone is sufficient reason
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in the U.S.A.

TALITY

Hee eer ent =a ni ase

you...

Warren McCleskey's
Last Will and

Testament

by George Wirth

Editor's note: George Wirth, pastor of First
Presbyterian Church in Atlanta, visited and
befriended Warren McCleskey for a year before
his execution. At Warren's funeral George
shared these words that Warren spoke on the
afternoon before his death.

Tuesday, September 24, 1991, 3:45pm
Jackson State Prison, Georgia

._ “I want to thank you and Paul Cadenhead
and Bob Reinhardt and Jack Boger and Bob.
Stroup and Bill Kinnaird and Murphy and Ed
and my family and everybody else for all that
you did. . . and I want you to tell them
that this wasn't something we lost but rather
a great victory, because the light still
shines in the darkness and we have prevailed
over the powers of evil. . . please tell
everyone that we don't have to be bitter; we
don't need to seek revenge--we just need to
do what Jesus did and remember those words He
said from the cross, 'Father, forgive them
for they know not what they do'. .. all we
have to do now is put ourselves in God's
hands and know that He is ‘working all things
together for good,' and that ‘nothing can
ever separate us from the love of God which
is in Christ Jesus our Lord'. . . I also
believe that just as there has been a reason
for my living, there will now be a purpose in
my dying--this is not the end, but a new
beginning for me and hopefully for all of
it could be that my execution will
help to change things for other people in the
future, and I trust in God's will to help
that happen. . . between now and then, may
God comfort you and continue to work through
all of you. . .-I love you. .. the victory
is ours!"

As the guards came to take Warren away,
the Rev. Ed Loring looked at him and shouted
out what all of us were thinking--"Hey! You
look like Jesus! Praise God!"

Warren smiled, waved at us, then turned
around and, in the company of the guards, he
led the way as he walked toward eternity. {j

Giry.

x4 reget ‘


Tuesday, September 24, 1991

SHAR GNe TRtag sept By

<<

SAN DIEGO TRIBUNE A-9

Police killer faces execution tonight

ATLANTA (AP) — Convicted po-
lice killer Warren McCleskey is wait-
ing to learn if he will be executed
tonight as a state board weighs the
statements of two jurors who said
they didn’t have adequate informa-—
tion when they sentenced him to
death. :

The state Board of Pardons and
Paroles also weighed the statements
of Officer Frank Schlatt’s friends and
family, who said McCleskey should
die in the electric chair at 7 p.m.
EDT as scheduled. McCleskey, whose
case and 13 years of appeals helped
shape capital punishment laws, was
sentenced to death for the 1978 slay-
ing of the policeman during a furni-
ture store robbery.

The two jurors told the board yes-
terday that they would have not
voted for’the death penalty if they

—_ coors en

had known that a key witness against
McCleskey was a jailhouse snitch
who was promised help with his own
case.

“It’s hard enough to make the deci-
sion to take someone’s life, but when
you don’t have all the evidence, it’s
an outrage,” juror Jill Darmer said.

“T was led to believe that this man
stepped forward voluntarily and the
police had nothing to do with it,” said
juror Robert Burnette.

During the hearing, attorneys for
McCleskey, 46, asked the board to
commute the sentence, based on the
jurors’ statements.

But Schlatt’s friends. and family
said the sentence should stand.

“He was a good man and a good
police officer,” Jodie Schlatt-
Swanner, 24, said of her father. “It’s

about time that the justice system
takes up for my father.”

The five-member board is Georg-
ia’s only non-judicial agency with
clemency power.

Witnesses pegged McCleskey as
the gunman but he repeatedly has
insisted he did not pull the trigger.


The color
of execution

DERRICK Z. JACKSON

n Maryland, Damon Bawie: is
alive. In: Georgia, Robert
McCleskey is dead. In Mary-
land, justice was seryed: .In|
Georgia, it was denied. The connec-
tion between the death penalty and
the color of one’s skin remains 3)
s ht line... «
anany is 21. Last year, he was
sentenced to death for his alleged:
part in the 1989 murder of two res-"
taurant workers in Prince George’s-
County. Three weeks ago, the Mary-
land Court of Appeals threw out the
verdict and the sentence.
oe court ruled that. during the
selection process, potential, jurors
were not asked questions that, could.
have exposed racial prejudice, ‘Qne:
of the murder victims and those ;who
were wounded were white. Most of
the witnesses were white. Bowie is:
African American. The potential } ja="
rors were not asked if they would
find ‘police testimony more. ‘credible’
than civilian testimony. One. of- the:
wounded was an off-duty officer. >
None of this means Bowie .wilk)
necessarily escape execution or 4 life;
sentence. He is still charged . with.
shooting two workers in the baek of.
the head at close range while taking
a few hundred dollars. The~point is
that the Maryland Court of: Appeals
understood that a jury can rush uni
fairly to hand the death penalty- to
‘an African American. rep ee Meh
- There was no such understand:!
ing in Georgia. Nearly two -weeks
ago McCleskey, another African:
American, was put to death in the,
electric chair. MeCleskey was one of!
four people who tried to rob an At-
lanta furniture store in 1978. A po-
lice officer was shot and killed: =
In 1987, defense lawyers:argued|
before the Supreme Court-that
Georgia’s death penalty was: racist:
and unconstitutional. In Georgia, Af!
rican Americans who kill white)
Americans were 11 times more likely,
to be executed than white people,
who kill African Americans. Since;
1973, 11 of the 15 people executed
have been African American. Of the”
15 cases, white people were a,
tims in 13. .

- Most notorious is the judicial cir-
cuit around Columbus, Ga:,. which:
has issued more death serjtences,
than any other Georgia distri¢t. Sit,
ty-five percent of the murder victims’
since 1973 have been African Aimeri;
can. But of cases where the district,
attorney sought the death penalty,
85 percent involved white victims.

Of all potential death ‘penalty

cases, the DA sought the death pen
alty 34.3 percent of the time when.
the victim was white. ne

When the ‘victim was African
American, he sought the death pen-
alty only 5.8 percent of the time. N a- |
tionally, the first execution of a white |
man for the slaying of an African
American since 1944 mappeted Just.
last month.

The conservative Sanna Court
was unmoved. It upheld McCles-
key’s sentence. In April, the -court’
ruled om the McCleskey case, againy:
The witness who said McCleskey..
claimed ‘to fire the fatal shot turned. /
out to be a.police informant who al-
legedly had his charges dropped.

Two of the jurors who ‘gave
McCleskey the death sentence said’
they now would have not déneé ‘0.
Juror Robert Burnette said: that’ “it '
would have been a hung jury.”- ene

This was of no relevance to'a Sul!
preme Court dedicated to frying the
accused. It upheld the sentence .andy
used the case to limit the number gf
appeals a death-row immate..cani
make. In his dissent, retiring Justice,
Thurgood Marshall said the_ ruling,
“encourages state officials to conceal

evidence.” Georgia State Attorney
Mike Bowers was so ecstatit in ‘get*
ting rid of McCleskey that he’ said;
“This guy has been to the Siipreme
Court twice and nea for + 13}
years, and that’s too long.”> «2: %.45+
No time is too long if divest is‘ ay
chance someone might be innocent!
McCleskey admitted taking part, in-
the robbery, but not the shooting.
He was already doing serious time,
He should have also lived, as sure as
Bowie. + adie
The death penalty should” ie
abolished for the simple factthat if
allows no opportunity to fectify: &®
mistake. Its political application:
makes it that much ‘more an open.
sore. The wheels of justice roll.with
speedy force when the victim is!
white. The steamroller of. -Miscay-
riage aims most’ accurately. at Afri:
can Americans. _

see
ba

Derrick Z. Jackson is a Globe column.
nist.


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910 Ponce de Leon Ave., NE, Atlanta, GA 30306-4212 * 404/874-9652 _

vol. 11, no. 1 ; ADDRESS CORRECTION REQUESTED _ January 1992

. 7
Warren
McCleskey —

1948-199]

tember 25, 1991. He spent thirteen years on death row, convicted of
icipating in an armed robbery in which Officer Frank Schlatt of the

nta Police Department was killed. Minutes before he was electrocuted,
ren spoke these last words. :

ren McCleskey was executed by the State of Georgia at 3:18am on ;

MARLENE KARAS

I would like to say to the Schlatt family I am deeply sorry and repentant for the
fering, hurt and pain that you have endured over the years. I wish there was something I
ld do or say that would give comfort to your lives and bring peace to it. I pray that you
ld find it in your heart to forgive me for my participation in the crime that caused the
s of your loved one. I want you to know that I have asked God to forgive me and pray in my
rt that you will forgive me. I pray that you will come to know the Lord Jesus Christ and
eive his peace that passes all understanding. I know that is the peace that you are looking
7 I know that is the peace that you desire; I wish that this execution could give it to you,
I know it won't. It will give you temporary satisfaction. The only peace you will forever
e, that is lasting, that will never depart, is found in the light of God with Jesus Christ.
Also, I would like to say to all my attorneys and the defense team, thank you for a job
1 done. Do not believe in your heart that you did not give your best efforts. You all are
victors. I am deeply grateful for all that you have done to try to save my life. I pray
| t you will continue on and struggle to try to fight against the death penalty and injustice.
| lso pray you will remain strong in faith and not allow what is about to occur to weaken your
th in God. Do not allow it to alter your life style in any way.
I want to say to my family, be strong, courageous, and remember the things I shared with
| today. Do not hold any bitterness toward anyone; do not have any resentment toward anyone.
s is my request for you, that you be forgiving to all. I pray that you will go on with your
es and that you will keep God at the center so that he can direct your paths.
To all the brothers whom I leave behind, I pray that you will remain strong in faith, and
ray also that you will not forsake the faith for what is about to occur to me. Stay strong
focus on God and on God's words; continue to fight and keep your hope alive and know that
s is not the end for me. .This is only the beginning to all blessed hope for eternal life.
all my brothers, take care. I love you all.

The thirteen years I have been here on death row have been very productive years--years in
ch God has moved in my life and has inspired me to touch other lives. That is the service
t will never be forgotten; that is something that will always live on. I know that many
ple have been longing and waiting for this moment in which the McCleskey case will end, but
ould like to say to you that the McCleskey case will never end. ...

a)


on) es aap womrenng: pete ana re mr

nO ge eat ia Ot et et Oe OO pt —

Warren
McCleskey:

The ups and downs of Warren McCleskey's
journey through the courts was enough to make
mincemeat of anybody's mind and spirit.
Sometimes I think that losing one's mind is a
most reasonable response to life on death row

and to the vagaries of court decisions.

In many ways at the beginning, Warren
was like most others. He arrived on death
row dazed, confused, hurt, and overwhelmed
with pain and remorse. He had a tentative
hope for his legal appeals and began the long
process of waiting day after day, month after
month, year after year, for relief.

Relief, he learned, comes and goes.
When a federal judge overturned his death
sentence, Warren was exhilarated. When a
higher court reinstated the sentence, Warren
was stunned. Again a federal judge
overturned his case. Again it was
reinstated. He saw relief no more. Sure,
there was hope along the way, but the
machinery of death was grinding slowly and
steadily toward its goal.

I knew Warren over the period of those
years and I ama grateful witness to the fact
that he was a stronger and more vibrant human
being all the way toward his death than he
had been earlier. On the day before his
death he literally glowed with inner peace as
he comforted the many friends and family
members grieving around him.

Warren had learned, he explained to me
on several occasions, that he had been too
vulnerable to the ups and downs, the twists

and turns, of court decisions. Whether or
not he had relief was determining whether or
not he could be a happy person. He decided
that he simply could not let the courts have
that much power in his life. He could only
be pushed around if he was off center.

Warren had accepted the fact that his
life--however damaged it had become~-was a
gift from God. God had given it and only God .
could really take it away. He had deeply
wanted to be forgiven for the pain and
suffering he had caused others, and he came
to understand that God had forgiven hin.
Those two realities--God's gift of life and
the love and forgiveness he came to
know--became the center for him. He began
through prayer and daily discipline to focus.
Gradually the courts, the media, the prison
officials, the threats, and even death itself
lost power in Warren's life. He moved toward
a peace and serenity I have never seen in
another human being. .

Perhaps this sounds like a description -
of a person who has lost touch with reality.
But Warren stayed in touch. He was engaged,
funny and thoughtful to his friends and
family. He followed his case closely and
clearly wanted to live. Warren lost his
fear. Death lost its sting.

On Tuesday, September 24, we sat ina
small visiting room in the prison. We knew
word would come soon from the Board of
Pardons and Parole: Warren would live or
Warren would die. We were all tense; we had
been waiting so long. Everything that could
have been done had been done. Countless:
numbers of people from all walks of life had
come forward as advocates for Warren. New
lawyers joined those who had fought for him
over the years and argued passionately on
behalf of Warren. Nobody could think of
anything that could have been done that
wasn't done. Now we waited and talked.

An agonized wail cut the air, and I
realized that Warren's family had arrived in
the same moment with devastating news. Jack
Boger stood on the other side of the steel
mesh door, his face gray. "They turned us
down," he said grimly.

There were many tears in what remained
of that day. But_Warren was the one who
never flinched. He was steady and calm; he
was ready and at peace.

The fight went on through the night and
didn't end until Warren was dead at 3:18am.
But he never changed. As much as he had
wanted to live Warren McCleskey was
ready--and had been ready for a long time--to
die. That is why, I believe, Warren was able
to live so fully. Isn't it strange? Warren
was one of the most joyful people I've ever
known.

I guess this is what Jesus meant about
abundant life. It comes after death loses
its sting. And it goes on after the
machinery: of death spends all the power it
has.

Thank you, Warren. You will live in my
heart forever as one of the best teachers I
will ever know.


Warren and |
the Warden

by Ed Loring

Warren McCleskey had coffee-colored
skin, short black hair and blue-black eyes
like ink. He wore no glasses and his teeth
were white and strong. His body bulged with
muscles. He was 5 feet 10 inches tall.
Warren listened and he spoke. His soul life
did not begin until he was in prison. Warren
told me that his prison experience was great
and wonderful, the best life he ever knew.

In that hell-hole he found love and
friendship, purpose, and a time to reflect
upon his life. Most important, Mac, as his
prison family called him, was led by the life
and witness of Billy Neal Moore to Jesus the
executed Christ.

September 24, 1991

We sit in this place of grief, this hole
in the heart of hell. We wait for a word:
the written or verbal symbol of the forces of
modern America on the soul of one Black man.
"ves" or "No. w

"They can't kill life," Warren sings in
antiphonal response to the steel clamor of
iron bars banging behind paid prison
personnel who slide toward the parking lot
but who can never find freedom for the price
paid to be paid for caging men and women is
the human freedom given to be human but
renounced when freedom is spent caging
others. ...

So even in hot little pick-ups with
confederate flags adorning the grille,
running at 70 mph on Highway 36, the Warden
and the guards know they are trapped in
trapping others, and though Warren sits in
the electric chair, they are the dead men.
Deader than Warren will ever be for he seeks
forgiveness and they have never done a thing
to need forgiveness for they only follow
orders. Sad orders, death orders, lonely
tearless orders: who next to burn? who yet
to chain? They feel no sin only orders down
from the Atlanta office.

So homeward they fly in just a bit too much
of a hurry to see Warren seek forgiveness on
TV. The Warden and the guards dream of a
moment in their own lives that could bring
them to a cry for forgiveness, but there is
no forgiveness for locking up 2000 poor men
or killing death row prisoners, for in the
USA that is a right, not a wrong.

So who will cry and stand vigil against
the Demon of death when the Warden's soul is
clasped between his iron jaws on some evening
when it refuses to rain and no songbirds
sing? Even the prison parking lot will be
empty of everything but cars and dirty pick-
up trucks with only the faint odor of Jeb
Stuart in the cabs.

7 tell
‘Watooe did

the truth

one of the
ee these

you did. forme” Matt 25:40

And coffee-colored Warren is insightful
for those who are able to see within: The
Warden and his chair cannot kill life; only
165.pounds of beautiful Black flesh. (Back
in Atlanta at 7:00pm the rain rushes
groundward. Horace Tribble who 15 years ago
lost 35 pounds of beautiful Black flesh,
which was not enough to take him down, climbs
with agony the slippery cement steps under
the wet shadow of the madman Tom Watson's
statue to hold a piece of cloth, signing,
"Stop the Death Penalty," to sad folk on
their way to the Braves game. "Play Ball!!")

It is finished.

The Warden, finally free to leave the
prison at 4:00am, walks past his office and
gets into his immaculately washed American
made car with no little dixie flags attached
and heads to his house. His home, his home?
Well, over the years his home has shifted
place from where his wife and children sleep
to the prison. There he feels like a man, in
control, with guards politely bowing and
prisoners. . . well, you know. How he loves
to walk the corridors and hear the clank of
bloodless steel rattle behind him. Just once
in a twist of wind he wished he could sin and
seek forgiveness but then how could he be
Warden and Master of a prison if he tasted
the life for which Warren McCleskey now sings
in trees along the banks of the Towaliga
River?


Remembering Warren

by William Neal Moore

Editor's note: Billy Moore spent sixteen
years on death row and was a close friend of
Warren McCleskey. In 1990 Billy was given a
life sentence, and in November 1991, he was
released from prison. :

It was in the month of November 1981,
when I first met Warren McCleskey at Jackson
on death row. I realized that this was
someone special because one of the officers
called me to the small window and said,
"Moore, take care of him and look out for
him, okay?" In all my time-on the row no
officer had ever expressed any outward
concern for another inmate.

I went down to Warren's cell, asked him
if he needed anything, and introduced myself.
While Warren was making his bed, he asked me
how long I had been on death row. When. I
told him that I had been on the row for seven
years, he mentioned that he thought it was
amazing that a person could be on the row for
so long and not appear to be in any way
insane.

Warren asked me, "How in the world do
you handle being here knowing that the’ State
wants to kill you?" I answered, "It all
comes from the peace of Christ being in my
life, and that is the only difference."
Warren told me that he was not Christian and
that he was unsure of everything with the
sentence that he had.

Warren had a lot of questions about the
Bible. On the third day when I went to his
cell he told me that he was planning to give
his life to the Lord because he realized that
he had really messed it up and didn't know
what else to do. Warren expressed his
perceptions of me as one that didn't have a
worry in the world and also expressed his
desire to have that sort of peace.

It was after a few months that Warren
really started to catch on fire. He
faithfully attended our Bible study group and
contributed from what he was learning. It
always impressed me how he was able to see
some truths from his past experiences where
he had taken wrong turns in life and how such
directions led the whole group to their
present situation: doing time on death row.

The greatest desire of Warren's heart
was to be able to help others see that a life
of crime only pays out despair and heartache
for everyone involved. With that
overwhelming burden, he would use all the
patience that God had given him to reach the
lives of the younger men who came to the row
and really didn't understand the seriousness
of their sentence. They thought that the
death sentence was some sort of game the
state was playing with them and that, in the
morning, all of this would be over. Warren
could talk to anyone, sharing Christ with

them in the face of all sorts of foolishness
that was a part of the life on the row.

Through another inmate, Warren and I
were told of an inmate poor fund that was set
up at Reidsville State Prison in the old
days. This fund provided the basic
necessities for inmates who didn't have any
funds. In starting such a group ourselves we

provided for these inmates by pooling our

resources and buying the things needed,
laying them in store for those who had need
of them. It wasn't any problem to determine
who didn't have anything because in the
cellblocks you could easily see the

. possessions of another. All of the items

were kept in Warren's cell because he had the
best ability to reason with the ones who were
abusing the program. Warren would always say
that the Lord did bless us and allow us to be
in the position to be a blessing to others
even in the midst of all the terrible
circumstances that we lived in daily.

On September 24, 1991, at around 5:00pm,
I was called to the prison chapel. Chaplain
Thomas told me that he was setting up a call
to death row so that I could talk to Warren.
While the chaplain dialed the number, we
talked about how I had spent three days in
the deathwatch cell, where you can see the
electric chair. Warren came on the line
after a few minutes and said, "Hello, is this
William Moore?" Blessed and overjoyed to
hear my friend's voice, I responded, “How are
you my brother and friend?"

We talked for 30 minutes and it was a
wonderful gift. I am thankful for the
encouragement that Warren provided for me
during that phone call. I thought it rather
funny: here I was, expecting and desiring to
support my brother hours before his
execution, and as it ended up, he provided

~~, the blessings; he provided the encouragement.

(continued on page 11)


et een ata as

Rights Die Too
In Georgia

Execution

by Leigh Dingerson

Editor's note: Leigh Dingerson is executive
director of the National Coalition to Abolish
the Death Penalty. We are grateful for her
permission to reprint this article, which
appeared previously in the October 30 issue
of The Guardian.

The killing of Warren McCleskey in
September did not set off a night of protest
in Atlanta. There were no mass marches, no
angry denunciations of the organized mob that
killed him. ;

McCleskey was put to death by the state
of Georgia at 3:18am on September 25. One
hundred and fifty-four others have shared his
fate, have been strapped down and killed by
the government in the last two decades. But
his execution was different. Not because of
his background or anything extraordinary
about him, but because of what it says about
us.

A 44-year-old African American factory
worker, McCleskey was convicted and sentenced
to death for the murder of a white police
officer during the 1978 robbery of an Atlanta
furniture store. McCleskey and three
accomplices were arrested and confessed to
participating in the robbery. But all denied
shooting Officer Frank Schlatt, and no
evidence pointed conclusively to any of the
four men. While his accomplices were
convicted of the robbery and sent to prison,
McCleskey was convicted of murder and ~
sentenced to death.

The Supreme Court considered aspects of
McCleskey's case twice. Each time, McCleskey
challenged his death sentence based on long-
established constitutional rights. Each
time, his challenge led to the overturning,
not of his sentence, but of those rights.

The court's decisions--one in 1987 and one
earlier this year--signaled the beginning and
then the apex of the dismantling of the Bill
of Rights for the purpose of getting
prisoners strapped down and snuffed out.

In his first appeal, McCleskey
challenged the way Georgia hands out death Sd

the use of the death penalty in that state,
McCleskey demonstrated that of all the
factors that might lead a jury to recommend a
death sentence, the single most significant
in the pattern of death sentencing was not
the brutality of the crime or the prior
record of the murderer or any of over 200

other factors. It was the color of the

victim's skin.

Racism in criminal justice is nothing
new. Not too long ago laws specified
different sentences depending on the race of
the crime victim. Men accused of raping
white women have historically faced much
harsher treatment than those charged with
raping Black women, and the same racial
double standard has applied to other crimes.

In 1972, the Supreme Court overturned
the death penalty on the basis of
evidence--far less extensive than
McCleskey's--that the imposition of the death
penalty was influenced by race. But this is
a different time and a different court.

The justices' response to McCleskey's
evidence was stunning. Accepting the
evidence of discrimination as valid, the
Court ruled 5 to 4 that racism is an
unfortunate but acceptable factor in death
penalty cases. "Apparent disparities in
sentencing are an inevitable part of our
criminal justice system," wrote Justice Lewis
Powell for the majority.

Turning discrimination law on its head,
the court ruled that unlike plaintiffs
claiming job or housing discrimination,
prisoners facing execution must show
intentional bias on the part of specific
players in the process. McCleskey found the
smoking gun but failed to produce the hand

sentences. Through an exhaustive analysis of a that held it.

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