Georgia Case Closely Watched : Key Rulings on Horizon for Capital Punishment

In May, 1978, Atlanta Police Officer Frank Schlatt, responding to a silent alarm, interrupted a robbery by four armed men at the Dixie Furniture Store. Two shots rang out. One glanced off a cigarette lighter in the officer’s chest pocket--but the other struck him fatally in the head.

One of the four men, Warren McCleskey, was later tried, convicted and condemned to die for murdering Schlatt with a stolen .38-caliber pistol. But McCleskey’s lawyers argue that because he is black and the victim was white, the verdict of death was all too probable. They contend that Georgia’s capital punishment law is systematically biased--and they point to statistics showing that a defendant who kills a white is much more likely to face execution than one who kills a black.

The Georgia case is one of three now before the Supreme Court that could make its forthcoming term the most significant for capital punishment since the justices reinstated the death penalty in 1976.

Selection of Juries

A second case affects a key issue in the way capital trial juries are selected. In that case, the state of Arkansas, supported by 26 other states (not including California), is asking the justices to overturn a federal appeals court ruling preventing the systematic removal of prospective jurors in the guilt-or-innocence phase of a capital trial when they are unalterably opposed to the death penalty.

The appeals court concluded that the process of excluding such persons could result in juries overly prone to convict. If that ruling were upheld, attorneys for the states contend, it would require a major changes in the jury selection process and, if applied retroactively, could force retrials in countless murder cases.

The justices will decide whether to hear those two cases after they return to the bench in October. Already on the court’s calendar is still another capital case that the court last May agreed to hear in the upcoming term. In that case, involving a convicted murderer from Virginia, the justices will decide under what circumstances--if any--a defendant facing the death penalty has the right to question potential jurors about their racial views.

Last Flickering Hope

But legal authorities say it is the Georgia case that may well represent the last flickering hope of death penalty foes for a sweeping judicial rejection of capital punishment.

“There’s no doubt this is the most fundamental challenge to the death penalty since its reinstatement,” said Stanford University law professor Robert Weisberg. “This involves a very subtle and intractable problem. Juries tend to vote for the death penalty when they experience a threshold degree of revulsion. That revulsion is likely to be greater in the case of a white victim . . . for reasons not fully understood. It’s obviously not due to conscious discrimination by lawmakers or perhaps even by juries.”

The attack on the Georgia law (McCleskey vs. Kemp, 84-6811) is centered on complex statistical data that death penalty opponents say show that the race of the victim--and, to a lesser extent, the race of the defendant--overly influences the outcome of capital cases.

A study by David Baldus, a law professor at the University of Iowa, examined more than 2,000 homicide cases in Georgia over a six-year period, finding that ultimately the death penalty was imposed only about 5% of the time--but with particularly disproportionate impact on defendants who had killed whites.

230 Factors Considered

The study found that defendants who killed whites were 11 times more likely to receive the death penalty than those who killed blacks. Blacks who killed whites got the death penalty three times more often than whites who killed whites.

Baldus then considered about 230 factors besides race--such as the background of the offender, the weight of the evidence and the amount of violence involved--that also could have affected the outcome. He calculated that the death penalty was still four times more likely when the victim was white rather than black.

The study also examined so-called “mid-range” cases--those involving neither the least nor the most aggravating factors but in which jury discretion was key to the outcome. In those cases, which were similar to McCleskey’s, the overall death penalty rate increased from 15% to 35% if the victim were white.

A federal district court in Georgia, reviewing McCleskey’s case, rejected the findings of the study, saying there were “substantial flaws” in the data and the way it was analyzed--and that there may have been other explanations besides race for the disparities in sentencing.

Last January, the U.S. 11th Circuit Court of Appeals in Atlanta, by a vote of 9 to 3, turned down McCleskey’s appeal. The court did not pass on the validity of the study itself. What was lacking, it said, was proof that any disparate racial impact was intentional. General statistical data, the court said, was of little use in determining whether an individual defendant, like McCleskey, got the death penalty only because the victim was white.

Constitutional Violation

Lawyers for the NAACP Legal Defense and Educational Fund, representing McCleskey, are contending to the Supreme Court that the racial disparities in sentencing in Georgia reflect a systematic bias that violates the Constitution. They say that regardless of intent, the disparate impact of capital punishment shows it is being applied arbitrarily.

Death penalty opponents say they believe that such discrimination-by-victim is by no means confined to Georgia--and that a ruling upholding McCleskey could cast a dark legal cloud over capital punishment in other states as well.

They point, for example, to a study co-authored by Stanford University law professor Samuel R. Gross, examining data from eight states (not including California) over a 15-year period. It found that while whites were the victims in fewer than half of the homicides, those cases resulted in 86% of the death penalties imposed.

A decision from the Supreme Court upholding the challenge to the death penalty in the Georgia case would represent a sharp change of course for the justices. Since 1976, when they upheld the death penalty under state laws that provide juries with “guided discretion” as a way of removing biased and arbitrary verdicts, the justices have given little indication they were ready to make sweeping decisions against capital punishment.

Earlier Rulings

Last year, for example, the court refused to require state courts to conduct special reviews to make sure that condemned murderers received sentences “proportionate” to sentences given others for similar crimes. In that case, a California inmate named Robert Alton Harris, convicted of murdering two youths in San Diego, contended that he should not have received the death penalty because other multiple murderers had not received it.

A defeat in the Georgia case could force death penalty opponents to resort increasingly to narrower challenges of capital punishment on an individual, case-by-case basis--a prospect, with more than 1,500 murderers now on Death Row, that could prove a heavy drain on their resources.

“There’s no denying losing that case would be a setback,” acknowledged Henry Schwarzschild, director of the capital punishment project of the American Civil Liberties Union.

“The population, political leadership and the courts may not yet have agreed with us that the death penalty is useless, arbitrary and discriminatory. But don’t foreclose the intelligence and resourcefulness of the anti-death penalty community to challenge the constitutional sufficiency of capital punishment in other cases when necessary in the future,” he said.

Other Challenges

Statistical data also plays a role in the Virginia case the court already has agreed to hear. In that case (Turner vs. Bass, 84-6646), lawyers for Willie Lloyd Turner say he was denied a fair trial because jurors were not questioned first about racial bias. The attorneys cited a study showing that in Virginia a black defendant who kills a white has more than an 8% chance of getting the death penalty--but less than 1% if the victim is black.

The jury-selection case from Arkansas (Lockhart vs. McCree, 84-1865) involves an unprecedented ruling last January by the U.S. 8th Circuit Court of Appeals in St. Louis. The court held that persons who could never vote for the death penalty still could not be excluded from juries deciding the guilt or innocence of a defendant in a capital case.

The court sought to answer a question left open by the Supreme Court in the case of Witherspoon vs. Illinois in 1968. In that case, the justices said prosecutors could remove death foes from juries--but specifically left unresolved the issue of whether doing so resulted in an unrepresentative jury that was unfairly inclined to convict.

Trials in Two Phases

The appellate court decision, if affirmed by the justices, could require substantial changes in the jury system in capital cases. At present, such cases are ordinarily tried in two phases--one to determine guilt, one to decide the penalty--by the same jury. The ruling could often require two juries--one, which could include death penalty foes, to determine guilt, and a second, without such foes, to determine the penalty.

The decision at present affects only states within the 8th Circuit that have the death penalty--Arkansas, Missouri, South Dakota and perhaps Nebraska, where judges impose such sentences.

But the issue is likely to be raised anew in other areas unless the 8th Circuit ruling is overturned by the Supreme Court. Meanwhile, the 8th Circuit said its ruling would be applied retroactively, raising the possibility of retrials in numerous capital murder cases--even those eventually resulting in life imprisonment, rather than death sentences.

David Crump, a professor at South Texas College of Law who filed a friend-of-the-court brief in behalf of the 26 states supporting Arkansas in its appeal, calls the appellate court ruling “misguided.”

Crump, in an interview, noted that the “two-jury” system might actually prove detrimental to defendants, undermining the heavy sense of responsibility a single jury bears now in determining guilt and then, if necessary, the penalty in a capital case. In a two-jury system, jurors with doubts might be less reluctant to vote against the defendant, thinking that prime responsibility could rest with the other jury.

“This decision doesn’t even achieve the result it aims at--protecting the defendant,” Crump said. “It was a decision that wasn’t thought through carefully.”

Next: Capital punishment in the South, America’s “death belt.”