580 F. Supp. 338 (N.D. Ga. 1984)
On October 12, 1978, Warren McCleskey was convicted in the Superior Court of Fulton County of two counts of armed robbery and one count of malice murder arising from events on May 13, 1978.1 The trial court sentenced him to death on the murder charge and consecutive life sentences on the armed robbery charges.2 On automatic appeal the Supreme Court of Georgia affirmed the convictions and sentences in McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980).3 The United States Supreme Court denied certiorari on October 6, 1980.4
McCleskey filed an extraordinary motion for a new trial on December 19, 1980, on which no hearing was ever held.5 He then filed a petition for writ of habeas corpus in the Superior Court of Butts County. After an evidentiary hearing the Superior Court denied all relief on April 8, 1981.6 The Supreme Court of Georgia denied a certificate of probable cause on June 17, 1981, and the United States Supreme Court denied certiorari on November 30, 1981.7 McCleskey filed this federal habeas corpus petition on December 30, 1981, asserting eighteen separate grounds.8
Several grounds alleged constitutional violations during trial and sentencing, while others challenged the constitutionality of Georgia's death penalty on the basis of sophisticated statistical evidence purporting to show racial discrimination in capital sentencing. Because of the statistical claims the court held an extensive evidentiary hearing.9 The underlying offense began on the morning of May 13, 1978, when McCleskey and three companions abandoned plans to rob a jewelry store in Marietta and instead targeted the Dixie Furniture Store in Atlanta.10 Each man was armed; McCleskey carried a shiny nickel-plated .38 caliber Rossi revolver.11
McCleskey entered the front of the store while the other three entered from the rear by the loading dock. Petitioner secured the front of the store by rounding up the people and forcing them to lie face down on the floor.12 Before the robbery could be completed, Officer Frank Schlatt, answering a silent alarm, pulled his patrol car up in front of the building.13 He entered the front door and proceeded down the center aisle until he was almost in the middle of the store.14 Two shots then rang out, and Officer Schlatt collapsed, shot once in the face and once in the chest.15 The head wound was fatal.16 The robbers fled with store receipts and the manager's watch.17
McCleskey was arrested weeks later in Cobb County during another armed robbery and gave a statement admitting participation in the Dixie Furniture Store robbery but denying that he fired the shots.18 At trial the State introduced McCleskey's statement, testimony from co-defendant Ben Wright, and testimony from Fulton County Jail inmate Offie Evans that McCleskey had admitted shooting Officer Schlatt and boasted he would have shot his way out even if a dozen officers had been present.19 The jury convicted McCleskey of malice murder and armed robbery.20 At the sentencing phase McCleskey presented no mitigating evidence.21 The jury found two statutory aggravating circumstances and imposed death.22
The statistical evidence was developed by Professor David C. Baldus through two studies.23 The Procedural Reform Study examined the universe of approximately 550 murder convictions under Georgia's post-Furman statute from March 28, 1973, through June 30, 1978, using data from Georgia Supreme Court files and the Department of Offender Rehabilitation. The Charging and Sentencing Study drew a stratified random sample from roughly 2,500 murder and voluntary manslaughter cases whose crimes occurred after March 28, 1973, and arrests before December 21, 1978, coding 595 variables from parole board files, vital statistics, and attorney questionnaires.24 Multiple regression models controlling for up to 230 variables were used to measure the effect of race of defendant and race of victim on death-sentencing rates.25 At the state habeas hearing Offie Evans testified that Atlanta detective J. D. Dorsey had promised to speak to federal authorities on Evans's behalf concerning pending escape charges from a federal halfway house; those charges were later dropped.26 At McCleskey's trial Evans had denied receiving any promises.27 The federal petition also raised claims concerning jury instructions on intent, admission of prior-crimes evidence, ineffective assistance of counsel at sentencing, and exclusion of death-scrupled jurors.28
Whether the statistical evidence from the Baldus studies establishes that Georgia's death penalty is applied in a racially discriminatory manner violating the Equal Protection Clause or Due Process Clause?29
To establish an equal protection or due process violation from statistical evidence of racial discrimination in capital sentencing, a petitioner must produce accurate data, models that reasonably account for all major non-racial variables, results that are statistically significant, and evidence showing the likelihood of discriminatory treatment by the specific decision-makers. Disparate impact alone is insufficient unless the only permissible inference is intentional discrimination.30
No. The Baldus Procedural Reform Study and Charging and Sentencing Study data bases contain substantial flaws.31 These include numerous variables coded as unknown and treated as absent.32 There is inconsistent coding between studies.33 Information is missing on key decisions such as whether penalty trials occurred in 62 cases.34
Even the 230-variable model yields an r2 of only .46 to .48.35 It fails to predict outcomes in half the cases.36 Multi-colinearity causes white-victim cases to serve as proxies for aggravated cases.37 Black-victim cases serve as proxies for mitigated cases.38 The best models show no statistically significant race-of-victim or race-of-defendant effect on the prosecutor's decision to seek death or the jury's decision to impose it.39
The statistical evidence does not establish a prima facie case of racial discrimination in violation of the Equal Protection or Due Process Clauses.40
Whether the prosecution's failure to disclose a promise of favorable treatment made to key witness Offie Evans violated due process?41
Under Giglio v. United States, the prosecution must disclose any promise of favorable treatment made to a key government witness that could affect credibility. A new trial is required if there is any reasonable likelihood that the undisclosed promise and resulting false testimony could have affected the judgment of the jury.42
Yes. At the state habeas hearing Offie Evans testified that Detective Dorsey promised to speak to federal authorities on his behalf regarding pending escape charges from a federal halfway house.43 Yet at McCleskey's trial Evans denied receiving any promises.44 Evans was the only witness besides the co-defendant to testify that McCleskey admitted shooting Officer Schlatt.45
He boasted he would have shot his way out even if a dozen officers were present.46 This testimony was the most damaging on the issue of malice.47 There is a reasonable likelihood that disclosure of the promise would have affected the jury's verdict on malice murder.48
The failure to disclose the promise violated due process and requires that McCleskey's conviction and sentence for malice murder be set aside.49
Whether the trial court's jury instructions on intent created an unconstitutional mandatory presumption relieving the prosecution of its burden of proof?50
Jury instructions that create a mandatory rebuttable presumption on an essential element such as intent violate due process under Sandstrom v. Montana. This is true unless, when viewed in the context of the entire charge, they create only a permissive inference that the jury may draw from the facts.51
No. The instruction that a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts was read together with the remainder of the charge.52 The charge stated that criminal intent is an essential element to be determined by the jury.53 It also stated that the jury may find such intention from words, conduct, demeanor, motive and circumstances.54 This created only a permissive inference under the controlling precedent of Tucker v. Francis.55
The jury instructions did not violate due process.56
Whether trial counsel rendered ineffective assistance by failing to investigate adequately and present mitigating evidence?57
To establish ineffective assistance of counsel a petitioner must show by a preponderance of the evidence that counsel's performance fell below the standard of reasonably effective assistance. The ineffectiveness must have resulted in actual and substantial disadvantage to the defense. Even then relief may be denied if the outcome would not have been altered beyond a reasonable doubt.58
No. Trial counsel made a reasonable strategic choice to pursue an alibi defense.59 This followed McCleskey repeatedly insisting he was not present.60 It also followed a key eyewitness failing to identify him at the preliminary hearing.61 Counsel contacted McCleskey's sister.62 Counsel reasonably concluded no mitigating witnesses were available.63 The habeas court credited counsel's testimony that no names were provided.64 Petitioner therefore failed to demonstrate actual and substantial prejudice from any alleged deficiencies.65
Trial counsel did not render ineffective assistance.66
Whether the admission of details concerning prior convictions not presented at the guilt phase violated due process?67
Admission of details of prior convictions at the guilt phase violates due process only if the evidence is so seriously prejudicial that it undermines the reliability of the jury's guilt determination.68
No. The details of prior armed robberies were admitted after McCleskey took the stand and admitted the convictions.69 While the evidence might not have been admissible under the Federal Rules of Evidence, it was not so seriously prejudicial as to undermine the reliability of the jury's guilt determination under Georgia law.70
The admission of the prior-conviction details did not violate due process.71
Whether the exclusion of prospective jurors opposed to capital punishment violated the Sixth Amendment?72
Under Witherspoon v. Illinois, prospective jurors may be excluded for cause if they make it unmistakably clear that they would automatically vote against the death penalty or that their attitude toward the death penalty would prevent them from making an impartial decision on guilt.73 This circuit has rejected claims that such exclusions produce a prosecution-prone jury or violate the fair-cross-section requirement.74
The exclusion of the prospective jurors did not violate the Sixth Amendment.77