Full opinion text
ORDER OF THE COURT FORRESTER, District Judge. Petitioner Warren McCleskey was convicted of two counts of armed robbery and one count of malice murder in the Superior Court of Fulton County on October 12, 1978. The court sentenced McCleskey to death on the murder charge and to consecutive life sentences, to run after the death sentence, on the two armed robbery charges. On automatic appeal to the Supreme Court of Georgia the convictions and the sentences were affirmed. McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). The Supreme Court of the United States denied McCleskey’s petition for a writ of certiorari. McClesky v. Georgia, 449 U.S. 891, 101 S.Ct. 253, 66 L.Ed.2d 119 (1980). On December 19, 1980 petitioner filed an extraordinary motion for a new trial in the Superior Court of Fulton County. No hearing has ever been held on this motion. Petitioner 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 sought. McCleskey v. Zant, No. 4909 (Sup.Ct. of Butts County, April 8, 1981). On June 17, 1981 the Supreme Court of Georgia denied petitioner’s application for a certificate of probable cause to appeal the decision of the Superior Court of Butts County. The Supreme Court of the United States denied certiorari on November 30, 1981. McCleskey v. Zant, 454 U.S. 1093, 102 S.Ct. 659, 70 L.Ed.2d 631 (1981). Petitioner then filed this petition for writ of habeas corpus on December 30, 1981. He asserts 18 separate grounds for granting the writ. Some of these grounds assert alleged violations of his constitutional rights during his trial and sentencing. Others attack the constitutionality of Georgia’s death penalty. Because petitioner claimed to have sophisticated statistical evidence to demonstrate that racial discrimination is a factor in Georgia’s capital sentencing process, this court held an extensive evidentiary hearing to examine the merits of these claims. The court’s discussion of the statistical studies and their legal significance is in Part II of this opinion. Petitioner’s remaining contentions are discussed in Parts III through XVI. The court has concluded that petitioner is entitled to relief on only one of his grounds, his claim that the prosecution failed to reveal the existence of a promise of assistance made to a key witness. Petitioner’s remaining contentions are without merit. I. DETAILS OF THE OFFENSE. On the morning of May 13, 1978 petitioner and Ben Wright, Bernard Dupree, and David Burney decided to rob a jewelry store in Marietta, Georgia. However, after Ben Wright went into the store to check it out, they decided not to rob it. The four then rode around Marietta looking for another suitable target. They eventually decided to rob the Dixie Furniture Store in Atlanta. Each of the four was armed. The evidence showed that McCleskey carried a shiny nickel-plated revolver matching the description of a .38 caliber Rossi revolver stolen in an armed robbery of a grocery store a month previously. Ben Wright carried a sawed-off shotgun, and the other two carried pistols. McCles-key went into the store to see how many people were present. He walked around the store looking at furniture and talking with one of the sales clerks who quickly concluded that he was not really interested in buying anything. After counting the people in the store, petitioner returned to the car and the four men planned the robbery. Executing the plan, petitioner entered the front of the store while the other three entered the rear by the loading dock. Petitioner secured the front of the store by rounding up the people and forcing them to lie face down on the floor. The others rounded up the employees in the rear and began to tie them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6.00. Before the robbery could be completed, Officer Frank Schlatt, answering a silent alarm, pulled his patrol car up in front of the building. He entered the front door and proceeded down the center aisle until he was almost in the middle of the store. Two shots then rang out, and Officer Schlatt collapsed, shot once in the face and once in the chest. The bullet that struck Officer Schlatt in the chest ricocheted off a pocket lighter and lodged in a nearby sofa. That bullet was recovered and subsequently determined to have been fired from a .38 caliber Rossi revolver. The head wound was fatal. The robbers all fled. Several weeks later petitioner was arrested in Cobb County in connection with another armed robbery. He was turned over to the Atlanta police and gave them a statement confessing participation in the Dixie Furniture Store robbery but denying the shooting. Although the murder weapon was never recovered, evidence was introduced at trial that petitioner had stolen a .38 caliber Ros-si in an earlier armed robbery. The State also produced evidence at trial that tended to show that the shots were fired from the front of the store and that petitioner was the only one of the four robbers in the front of the store. The State also introduced over petitioner’s objections the statements petitioner had made to Atlanta police. Finally, the State produced testimony by one of the co-defendants and by an inmate at the Fulton County Jail that petitioner had admitted shooting Officer Schlatt and had even boasted of it. In his defense petitioner offered only an unsubstantiated alibi defense. The jury convicted petitioner of malice murder and two counts of armed robbery. Under Georgia’s bifurcated capital sentencing procedure, the jury then heard arguments as to the appropriate sentence. Petitioner offered no mitigating evidence. After deliberating the jury found two statutory aggravating circumstances — that the murder had been committed during the course of another capital felony, an armed robbery; and that the murder had been committed upon a peace officer engaged in the performance of his duties. The jury sentenced the petitioner to death on the murder charge and consecutive life sentences on the armed robbery charges. II. THE CONSTITUTIONALITY OF THE GEORGIA DEATH PENALTY. A. An Analytical Framework of the Law. Petitioner contends that the Georgia death penalty statute is being applied arbitrarily and capriciously in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He concedes at this level that the Eighth Amendment issue has been resolved adversely to him in this circuit. As a result, the petitioner wishes this court to hold that the application of a state death statute that permits the imposition of capital punishment to be based on factors of race of the defendant or race of the victim violates the equal protection clause of the Fourteenth Amendment. It is clear beyond peradventure that the application of a statute, neutral on its face, unevenly applied against minorities, is a violation of the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The more difficult question presented is why under the facts of this case the petitioner would be denied equal protection of the law if he is sentenced to death because of the race of his victim. This quandry has led the Eighth Circuit to find that a petitioner has no standing to raise this claim as a basis for invalidating his sentence. Britton v. Rogers, 631 F.2d 572, 577 n. 3 (8th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981). While this circuit in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), reh’g denied, 441 U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667, application for stay denied, 442 U.S. 1301, 99 S.Ct. 2091, 60 L.Ed.2d 649 (1979), seemed to give lip service to this same point of view by approving the proposition that a district court “must conclude that the focus of any inquiry into the application of the death penalty must necessarily be limited to the persons who receive it rather than their victims,” id. at 614 n. 39, the court in Spinkel-link also adopted the position that a petitioner such as McCleskey would have standing to sue in an equal protection context: Spinkellink [petitioner] has standing to raise the equal protection issue, even though he is not a member of the class allegedly discriminated against, because such discrimination, if proven, impinges on his constitutional right under the Eighth and Fourteenth Amendments not to be subjected to cruel and unusual punishment. See Taylor v. Louisiana, supra, 419 U.S. [522] at 526 [95 S.Ct. 692 at 695, 42 L.Ed.2d 690]. Id. at 612 n. 36. This footnote in Spinkel-link warrants close examination. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court held that a male had standing to challenge a state statute providing that a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The Court in Taylor cited to Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), to conclude: “Taylor, in the case before us, was similarly entitled to tender and have adjudicated the claim that the exclusion of women from jury service deprived him of the kind of factfinder to which he was constitutionally entitled.” Id. at 526, 95 S.Ct. at 696. In Peters the Supreme Court rejected the contention that because a petitioner is not black, he has not suffered any unconstitutional discrimination. The rejection of the argument, however, was based not on equal protection grounds, but upon due process grounds. See 407 U.S. at 496-97, 497 n. 5, 501, 504, 92 S.Ct. at 2165-66 n. 5 2168, 2169; id. at 509, 92 S.Ct. at 2171 (Burger, C.J., dissenting). Thus, for Spinkellink to articulate an equal protection standing predicate based upon Sixth Amendment and due process cases can be characterized, at best, as curious. Furthermore, not only does it appear that case law in this circuit subsequent to Spinkellink assumes that a contention similar to that advanced by petitioner here is cognizable under equal protection, see, e.g., Adams v. Wainwright, 709 F.2d 1443, 1449-50 (11th Cir.), reh’g en banc denied, 716 F.2d 914 (11th Cir.1983); Smith v. Balkcom, 671 F.2d 858 (5th Cir.1982) (Unit B); but it appears that this circuit is applying equal protection standards to Eighth Amendment challenges of the death penalty. See, e.g., Adams v. Wainwright, supra. Accord, Harris v. Pulley, 692 F.2d 1189, 1197-98 (9th Cir.1982), reversed and remanded on other grounds, — U.S. —, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Indeed, in Spinkellink itself, the court adopted an analytical nexus between a cruel and unusual punishment contention and a Fourteenth Amendment equal protection evidentiary showing: [Tjhis is not to say that federal courts should never concern themselves on federal habeas corpus review with whether Section 921.141 [Florida’s death penalty statute] is being applied in a racially discriminatory fashion. If a petitioner can show some specific act or acts evidencing intentional or purposeful racial discrimination against him, see Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 [97 S.Ct. 555, 50 L.Ed.2d 450] (1977), either because of his own race or the race of his victim, the federal district court should intervene and review substantively the sentencing decision. Spinkellink, 578 F.2d at 614 n. 40. Principles of stare decisis, of course, mandate the conclusion that petitioner has standing to bring forth his claim. Furthermore, under stare decisis, this court must strictly follow the strictures of Spinkellink and its progeny as to standards of an evidentiary showing required by this petitioner to advance successfully his claim. Were this court writing on a clean slate, it would hold that McCleskey would have standing under the due process clause of the Fourteenth Amendment, but not under the equal protection clause or the Eighth Amendment, to challenge his conviction and sentenced if he could show that they were imposed on him on account of the race of his victim. From a study of equal protection jurisprudence, it becomes apparent that the norms that underlie equal protection involve two values: (i) the right to equal treatment is inherently good; and (ii) the right to treatment as an equal is inherently good. See L. Tribe, American Constitutional Law, § 16-1, at 992-93 (1978). In this case, however, the evidence shows that the petitioner is being treated as any member of the majority would, or that petitioner’s immutable characteristics have no bearing on his being treated differently from any member of the majority. Thus, with reference to his argument that he is being discriminated against on the basis of the race of his victim, equal protection interests are not being implicated. Petitioner also fails to state a claim under the Eighth Amendment. It is clear from the decisions of the Supreme Court that the death penalty is not per se cruel and unusual in violation of the Eighth Amendment. Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the cruel and unusual punishments clause was interpreted as applicable to contentions that a punishment involved unnecessary pain and suffering, that it was so unique as not to serve a humane purpose, or so excessive as not to serve a valid legislative purpose. See Furman, 408 U.S. at 330-33, 92 S.Ct. at 2772-74 (Marshall, J., concurring). In other words, Eighth Amendment jurisprudence prior to Fur-man entailed an inquiry into the nexus between the offense and punishment; that punishment which was found to be excessive was deemed to violate Eighth Amendment concerns. The Supreme Court has determined as a matter of law that where certain aggravating features are present the infliction of the death penalty is not violative of the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In the instant case, petitioner’s race of the victim argument does not address traditional Eighth Amendment concerns. His argument does not entail — nor could he seriously advance— any contention that his penalty is disproportionate to his offense, that his penalty constitutes cruel and unusual punishment, or that his penalty fails to serve any valid legislative interest. What petitioner does contend is that the Georgia system allows for an impermissible value judgment by the actors within the system — that white life is more valuable than black life — and, as a practical matter, that the Georgia system allows for a double standard for sentencing. Certainly, such allegations raise life and liberty interests of the petitioner. Furthermore, such allegations speak not to the rationality of the process but to the values inherent in the process. In other words, it is the integrity, propriety, or “fairness” of the process that is being questioned by petitioner’s contention, and not the mechanics or structure of the process. Thus, petitioner’s allegation of an impermissible process speaks most fundamentally to Fourteenth Amendment due process interests, rather than Eighth Amendment interests that traditionally dealt with “cruel and unusual” contexts. For all its consequences, “due process” has never been, and perhaps can never be, precisely defined. “[Ujnlike some legal rules,” this Court has said, due process “is not a technical conception with a fixed content unrelated to time, place and • circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230], Rather, the phrase expresses the requirement of “fundamental fairness,” a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise which must discover what “fundamental fairness” consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake. Lassiter v. Department of Social Services, 452 U.S. 18, 24-25, 101 S.Ct. 2153, 2158-2159, 68 L.Ed.2d 640 (1981). It is clear that due process of law within the meaning of the Fourteenth Amendment mandates that the laws operate on all alike such that an individual is not subject to an arbitrary exercise of governmental power. See, e.g., Leeper v. Texas, 139 U.S. 462, 467-68, 11 S.Ct. 577, 579-80, 35 L.Ed. 225 (1891); Hurtado v. California, 110 U.S. 516, 535-36, 4 S.Ct. 111, 120-21, 28 L.Ed. 232 (1884). As Justice Frankfurter observed in Bochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (footnote omitted): Regard for the requirements of the Due Process Clause “inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” Malinski v. New York, supra, [324 U.S. 401] at 416-17 [65 S.Ct. 781 at 789, 89 L.Ed. 1029], The standards of justice are not authoritatively formulated anywhere as though they were specifics. Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 [54 S.Ct. 330, 332, 78 L.Ed. 674], or are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 [58 S.Ct. 149, 152, 82 L.Ed. 288], See also Peters v. Kiff, 407 U.S. 493, 501, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972) (“A fair trial in a fair tribunal is a basic requirement of due process.”) (citing In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955)). See generally, L. Tribe, supra, § 10-7, at 501-06. In summary, the court concludes that the petitioner’s allegation with respect to race of the victim more properly states a claim under the due process clause of the Fourteenth Amendment. The allegation is that the death penalty was imposed for a reason beyond that consented to by the governed and because of a value judgment which, though rational, is morally impermissible in our society. As such, McCleskey could fairly claim that he was being denied his life without due process of law. Although he couches his claims in terms of “arbitrary and capricious,” he is, to the contrary, contending not that the death penalty was imposed in his case arbitrarily or capriciously but on account of an intentional application of an impermissible criterion. As the Supreme Court predicted in Gregg and as petitioner’s evidence shows, the Georgia death penalty system is far from arbitrary or capricious. This court is not, however, writing on a clean slate. Instead, it is obliged to follow the interpretations of its circuit on such claims. As noted earlier Yic/c Wo gives McCleskey standing to attack his sentence on the basis that it was imposed on him because of his race and Spinkellink gives him standing under the equal protection clause to attack his sentence because it was imposed because of the race of his victim. McCleskey is entitled to the grant of a writ of habeas corpus if he establishes that he was singled out for the imposition of the death penalty by some specific act or acts evidencing an intent to discriminate against him on account of his race or the race of his victim. Smith v. Balkcom, 660 F.2d 573 (5th Cir. Unit B 1981), modified in part, 671 F.2d 858 (1982); Spinkellink, supra. In Stephens v. Kemp, — U.S. —, 104 S.Ct. 562, 78 L.Ed.2d 370 (1983), Justice Powell, in a dissent joined in by the Chief Justice and Justices Rehnquist and O’Connor, made the following statement with reference to the Baldus study: Although characterized by the judges of the court of appeals who dissented from the denial of the hearing en banc as a “particularized statistical study” claimed to show “intentional race discrimination,” no one has suggested that the study focused on this case. A “particularized” showing would require — as I understand it — that there was intentional race discrimination in indicting, trying and convicting Stephens and presumably in the state appellate and state collateral review that several times follows the trial. Id. 104 S.Ct. at 564 n. 2 (Powell, J. dissenting). The intentional discrimination which the law requires cannot generally be shown by statistics alone. Spencer v. Zant, 715 F.2d 1562, 1581 (11th Cir.1983), reh’g en banc granted, 715 F.2d 1583 (11th Cir.1983). Disparate impact alone is insufficient to establish a violation of the Fourteenth Amendment unless the evidence of disparate impact is so strong that the only permissible inference is one of intentional discrimination. Sullivan v. Wainwright, 721 F.2d 316 (11th Cir.1983); Adams v. Wainwright, 709 F.2d 1443 (11th Cir.1983); Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. Unit B), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). B. An Analytical Framework of Petitioner’s Statistical Evidence. The petitioner does rely upon statistical evidence to support his contentions respecting the operation of racial discrimination on a statewide basis. He relies on statistical and anecdotal evidence to support his contentions that racial factors play a part in the application of the death penalty in Fulton County where he was sentenced. Statistical evidence, of course, is nothing but a form of circumstantial evidence. Furthermore, it is said “that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.” Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1857, 52 L.Ed.2d 396 (1977). As courts have dealt with statistics in greater frequency, a body of common law has developed a set of statistical conventions which must be honored before statistics will be admitted into evidence at all or before they are given much weight. These common law statistical conventions prevail even over the conventions generally accepted in the growing community of economotricians. The first convention which has universally been honored in death penalty cases is that any statistical analysis must reasonably account for racially neutral variables which could have produced the effect observed. See Smith v. Balkcom, supra; Spinkellink v. Wainwright, 578 F.2d 582, 612-16 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); McCorquodale v. Balkcom, 705 F.2d 1553, 1556 (11th Cir.1983). The second convention which applies in challenges brought under the equal protection clause is that the statistical evidence must show the likelihood of discriminatory treatment by the decision-makers who made the judgments in question. Adams v. Wainwright, supra; Maxwell v. Bishop, 398 F.2d 138 (8th Cir.1968) (Blackmun, J.), vacated on other grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970). The third general statistical convention is that the underlying data must be shown to be accurate. The fourth is that the results should be statistically significant. Generally, a statistical showing is considered significant if its “P” value is .05 or less, indicating that the probability that the result could have occurred by chance is 1 in 20 or less. Said another way, the observed outcome should exceed the standard error estimate by a factor of 2. Eastland v. TVA, 704 F.2d 613, 622 n. 12 (11th Cir.1983). McCleskey relies primarily on a statistical technique known as multiple regression analysis to produce the statistical evidence offered in support of his contentions. This technique is relatively new to the law. This court has been able to locate only six appellate decisions where a party to the litigation relied upon multiple regression analysis. In two of them, the party relying on the analysis prevailed, but in both cases their showings were supported by substantial anecdotal evidence. E.g., Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508 (5th Cir.1976). In four of them, the party relying upon the technique was found to have failed in his attempt to prove something through a reliance on it. Generally, the failure came when the party relying upon multiple regression analysis failed to honor conventions which the courts insisted upon. Before a court will find that something is established based on multiple regression analysis, it must first be shown that the model includes all of the major variables likely to have an effect on the dependent variable. Second, it must be shown that the unaccounted-for effects are randomly distributed throughout the universe and are not correlated with the independent variables included. Eastland, supra, at 704. In multiple regression analysis one builds a theoretical statistical model of reality and then attempts to control for all possible independent variables while measuring the effect of the variable of interest upon the dependent variable. Thus, a properly done study begins with a decent theoretical idea of what variables are likely to be important. Said another way, the model must be built by . someone who has some idea of how the decision-making process under challenge functions. Three kinds of evidence may be introduced to validate a regression model: (1) Direct testimony as to what factors are considered, (2) what kinds of factors generally operate in a decision-making process like that under challenge, and (3) expert testimony concerning what factors can be expected to influence the process under challenge. Eastland, supra, at 623 (quoting Baldus and Cole, Statistical Proof of Discrimination). Other cases have established other conventions for the use of multiple regression analysis. It will be rejected as a tool if it does not show the effect on people similarly situated; across-the-board disparities prove nothing. EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 656-58 (4th Cir.1983), appeal pending; Valentino v. U.S. Postal Service, 674 F.2d 56, 70 (D.C.Cir.1982). A regression model that ignores information central to understanding the causal relationships at issue is insufficient to raise an inference of discrimination. Valentino, supra, at 71. Finally, the validity of the model depends upon a showing that it predicts the variations in the dependent variable to some substantial degree. A model which explains only 52 or 53% of the variation is not very reliable. Wilkins v. University of Houston, 654 F.2d 388, 405 (5th Cir.1981), cert. denied, 459 U.S. 822, 103 S.Ct. 51, 74 L.Ed.2d 57 (1982). “To sum up, statistical evidence is circumstantial in character and its acceptability depends upon the magnitude of the disparity it reflects, the relevance of its supporting data, and other circumstances in the case supportive of or in rebuttal of a hypothesis of discrimination.” EEOC v. Federal Reserve Bank of Richmond, supra, at 646-47. Where a gross statistical disparity can be shown, that alone may constitute a prima facie case of discrimination. This has become the analytical framework in cases brought under Title VII of the Civil Rights Act of 1964. Because Fourteenth Amendment cases have a similar framework and because there are relatively few such cases relying on statistics, when appropriate the court may draw upon Title VII cases. Jean v. Nelson, 711 F.2d 1455, 1486 n. 30 (11th Cir.), reh’g en banc granted, 714 F.2d 96 (1983). Generally it is said that once the plaintiff has put on a prima facie statistical case, the burden shifts to the defendant to go forward with evidence showing either the existence of a legitimate non-discriminatory explanation for its actions or that the plaintiff's statistical proof is unacceptable. Johnson v. Uncle Ben’s, Inc., 628 F.2d 419 (5th Cir.1980), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). The statistics relied upon by the plaintiff to establish a prima facie case can form the basis of the defendant’s rebuttal case when, for example, the defendant shows that the numerical analysis is not the product of good statistical methodology. EEOC v. Datapoint Corp., 570 F.2d 1264 (5th Cir.1978). Said another way, a prima facie case is not established until the plaintiff has demonstrated both that the data base is sufficiently accurate and that the regression model has been properly constructed. Otherwise, the evidence would be insufficient to survive a motion for directed verdict, and this is the sine qua non of a prima facie case. Jean, supra, at 1487. Statistics produced on a weak theoretical foundation are insufficient to establish a prima facie case. East-land, supra, at 625. Once a prima facie case is established the burden of production is shifted to the respondent. If it has not already become apparent from the plaintiff’s presentation, it then becomes the defendant’s burden to demonstrate that the plaintiff’s statistics are misleading, and such rebuttal may not be made by speculative theories. See Eastland, supra, at 618; Coble v. Hot Springs School District, 682 F.2d 721, 730-31 (8th Cir.1982); Jean v. Nelson, supra. C. Findings of Fact. The court held an evidentiary hearing for the purpose of enabling the petitioner to put on the evidence he had in support of his contention that racial factors are a consideration in the imposition of the death penalty. Hereafter are the court’s findings as to what was established within the context of the legal framework set out above. 1. The Witnesses The principal witness called by the petitioner was Professor David C. Baldus. Professor Baldus is a 48-year-old Professor of Law at the University of Iowa. Presently he is on leave from that post and is serving on the faculty of the University of Syracuse. Baldus’s principal expertise is in the use of statistical evidence in law. He and a statistician, James Cole, authored a book entitled Statistical Proof of Discrimination that was published by McGraw-Hill in 1980. R 54-56. He has done several pieces of social science research involving legal issues and statistical proof. R 45-46, 53. Before he became involved in projects akin to that under analysis here, Baldus apparently had had little contact with the criminal justice system. In law school he took one course which focused heavily on the rationale of the law of homicide. R 39. During his short stint in private practice he handled some habeas corpus matters and had discussions with a friend who was an Assistant District Attorney concerning the kinds of factors which his friend utilized in deciding how to dispose of cases. R 43-44. As a part of the preparation of statistical proof of discrimination, Baldus and his coauthor, Cole, re-evaluated the data set relied upon in Maxwell v. Bishop, 398 F.2d 138 (8th Cir.1968), vacated on other grounds, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), a rape case. R 72. Baldus became interested in methods of proportionality review and, together with four other scholars, published findings in the Stanford Law Review and the Journal of Criminal Law and Criminology. R 89. This was done on the basis of an analysis of some capital punishment data from California. R 81, et seq. Thereafter Baldus became a consultant to the National Center for State Courts and to the Supreme Court of South Dakota and the Supreme Court of Delaware. It is understood that his consulting work involved proportionality review. R 95. Baldus and Cole have also prepared an article for the Yale Law Journal evaluating statistical studies of the death penalty to determine if it had a deterrent effect. R 78. At the University of Iowa Baldus taught courses on scientific evidence, discrimination law, and capital punishment. Baldus was qualified by the court as an expert on the legal and social interpretation of data, not on the issue of whether or not the statistical procedures were valid under the circumstances. While Baldus has some familiarity with statistical methodology, he was quick to defer to statistical experts where sophisticated questions of methodology were posed. See generally R 109-20. Dr. George Woodworth was called by the petitioner and qualified as an expert in the theory and application of statistics and statistical computation, especially with reference to analysis of discreet outcome data. Dr. Woodworth is an Associate Professor of Statistics at the University of Iowa and collaborated with Baldus on the preparation of the study before the court. R 1193. The petitioner also called Dr. Richard A. Berk; a Professor of Sociology at the University of California at Santa Barbara, and he was qualified as an expert in social science research with particular emphasis on the criminal justice system. R 1749-53. The respondents called two experts. One was Dr. Joseph Katz, an Assistant Professor at Georgia State University in the Department of Quantitative Methods. He was qualified as an expert in analyzing data, in research design, in statistics, statistical analysis and quantitative methods. R 1346. Dr. Katz is a rather recent graduate of Louisiana State University. The respondent also called Roger L. Burford, a Professor of Quantitative Business Analysis at LSU. He was Katz’s mentor at the graduate level. Burford was qualified as a statistical expert. R 1627-32. The court was impressed with the learning of all of the experts. Each preferred the findings and assumptions which supported his thesis, but it seemed to the court that no one of them was willing to disregard academic honesty to the extent of advancing a proposition for which there was absolutely no support. 2. Scope of the Studies Baldus and Woodworth conducted two studies on the criminal justice system in Georgia as it deals with homicide and murder cases. The first is referred to as the Procedural Reform Study. The second is referred to as the Charging and Sentencing Study. R 121-122. The universe for the Procedural Reform Study included all persons convicted of murder at a guilt trial. Also included were several offenders who pled guilty to murder and received the death penalty. The time period for the study included offenders who were convicted under the new Georgia death penalty statute which went into effect on March 28, 1973, and included all such offenders who had been arrested as of June 30, 1978. In the Procedural Reform Study no sample of the cases was taken and instead the entire universe was studied. R 170-71. The data sources used by the researchers in the Procedural Reform Study were the files of the Georgia Supreme Court, certain information from the Department of Offender Rehabilitation, and information from the Georgia Department of Vital Statistics. R 175, et seq. Except for the few pleas, the Procedural Reform Study focused only on offenders who had been convicted of murder at a trial. R 122. There were approximately 550 cases in the universe for the Procedural Reform Study. The Procedural Reform Study began when Baldus developed a questionnaire and dispatched two students to Georgia in the fall of 1979. In 1980 the coders returned to Georgia and coded 264 cases on site. R 241-43, DB 28, DB 28A. As two different questionnaires were used, the researchers wrote a computer program which translated the data gathered from both questionnaires into one format. R 246. Baldus made some preliminary studies on the data that he gathered in the Procedural Reform Study. He found in these preliminary analyses no “race of the defendant” effect and a very unclear “race of the victim” effect. R 258. The Legal Defense Fund learned of Baldus’s research and retained him to conduct the second study. R 256. Baldus was of the opinion that it was critical to the validity of the study that the strength of the evidence be measured. R 262. Also, he felt it important to examine the combined effects of all the decisions made at the different levels of the criminal justice system. R 147. Accordingly, the design of the Charging and Sentencing Study was different in that it produced measurements in these two respects in addition to measuring factors akin to those which were already being taken into account in the Procedural Reform Study. The universe for the Charging and Sentencing Study was all offenders who were convicted of murder or voluntary manslaughter whose crimes occurred after March 28, 1973 and whose arrests occurred before December 21, 1978. This produced a universe of about 2500 defendants. R 123, 263-64. Any defendant who was acquitted or convicted of a lesser-included offense is not included in the study. R 264. From the universe of the Charging and Sentencing Study a random stratified sample was drawn. The first stratification was by outcome. The researchers drew a 25% random sample of murder cases with life sentences and a 25% random sample of voluntary manslaughter cases. R 1216. To this sample, all death penalty cases were added. R 267-69. The second stratification was geographic. The researchers drew a sample of 18 cases from each judicial circuit in Georgia. Where the circuit did not produce 18 cases in the first draw, additional cases were drawn from the population to supplement the original random sample. The results from each judicial circuit were then weighted so that each circuit contributed to the total effect in proportion to the total number of cases it contributed to the universe. R 270. Because of the many factors involved in such an analysis, a simple binomial comparison would show nothing. To determine whether or not race was being considered, it is necessary to compare very similar cases. This suggests the use of a statistical technique known as cross tabulation. Because of the data available, it was impossible to get any statistically significant results in comparing exact cases using a cross tabulation method. R 705. Accordingly, the study principally relies upon multivariate analysis. 3. The Accuracy of the Data Base As will be noted hereafter, no statistical analysis, much less a multivariate analysis, is any better than the accuracy of the data base. That accuracy was the subject of much testimony during the hearing. To understand the issue it is necessary to examine the nature of the questionnaires utilized and the procedures employed to enter the data upon the questionnaires. The original questionnaire for the Procedural Reform Study was approximately 120 pages long and had foils (blanks) for the entry of data on about 500 variables. DB 27. The first 14 pages of the questionnaire were filled out by the Georgia Department of Offender Rehabilitation for Professor Baldus. The remainder of the pages were coded by students in Iowa based on extracts prepared by data gatherers in Georgia. The data on the first 15 pages of the Procedural Reform Study questionnaire includes information on sentencing, basic demographic data concerning the defendant, his physical and psychiatric condition, his IQ, his prior record, as well as information concerning his behavior as an inmate. The next six pages of the questionnaire contained inquiries concerning the method of killing. Data is also gathered on the number of victims killed, information about co-perpetrators, and the disposition of their cases, and pleadings by the defendant. Another eight pages of questions search out characteristics of the offense. Three pages are reserved for data on contemporaneous offenses, and another three pages for the victim’s role in the crime and the defendant’s behavior after the homicide. There are additional pages on the role of co-perpetrators. There are more questions relating to the defense at trial and on the kinds of evidence submitted by the defendant. Then, there are 26 pages of questions concerning the deliberations of the jury and information concerning the penalty trial. The questionnaire concludes on matters relating to the disposition of the case with respect to other counts charged and, finally, the last page is reserved for the coder to provide a narrative summary of what occurred in the case. R 197-200, DB 27. This questionnaire also contained foils so that the coder could indicate whether or not the prosecutor or the jury was aware of the information being coded. It is important to reiterate that this questionnaire was not coded by students having access to the raw data in Georgia. Instead, as noted above, two law students prepared detailed abstracts of each case. Their notes were dictated and transcribed. These notes, together with an abstract filled out by an administrative aide to the Georgia Supreme Court and the opinion of the Georgia Supreme Court, were assembled as a file and were available in Iowa to the coders. R 209, 212, 241. During the 1979-80 academic year, another questionnaire, simpler in form, was designed for use in obtaining data for the Procedural Reform Study. This questionnaire dropped the inquiries concerning whether the sentencing jury was aware of the aggravating and mitigating factors appearing in the files. R 230-31. Some of the questionnaires were coded in Georgia and some were coded in Iowa. Baldus developed a coding protocol in an effort to guide those who were entering data on the questionnaires. R 220-21, 227. The professional staff at the University of Iowa Computer Center entered the data obtained from the various Procedural Reform Study questionnaires into the computer. Yet another questionnaire was designed for the Charging and Sentencing Study. The last questionnaire was modified in three respects. First, Baldus included additional queries concerning legitimate aggravating and mitigating factors because he had determined on the basis of his experience with earlier data that it was necessary to do so. Second, the questionnaire expanded the coverage of materials relating to prior record. Third, it contained a significant section on “strength of the evidence.” R 274-77. After the new draft was produced and reviewed by several other academicians, it was reviewed by attorneys with the Legal Defense Fund. They suggested the addition of at least one other variable. R 275. The Charging and Sentencing Study questionnaire is 42 pages long and has 595 foils for the recordation of factors which might, in Baldus’s opinion, affect the outcome of 'the case. Generally, the kind of information sought included the location of the offense, the details of all of the charges brought against the offender, the outcome of the case, whether or not there was a plea bargain, characteristics of the defendant, prior record of the defendant, information regarding contemporaneous offenses, details concerning every victim in the case, characteristics of the offense, statutory aggravating factors, a delineation of the defendant’s role vis-a-vis co-perpetrators’, information on outcome of co-perpetrators’ cases, other aggravating circumstances such as the number of shots fired, miscellaneous mitigating circumstances relating to the defendant or the victim, the defendant’s defenses at the guilt trial, and the strength of the evidence. R 280-86. Again, all of these were categories of information which Baldus believed could affect the outcome of a given case. A student who headed a portion of the data-gathering effort for the first study was placed in charge of five law students who were hired and trained to code the new questionnaires. R 308. This supervisor’s name was Ed Gates. The principal data source for the Charging and Sentencing study was records of the Georgia Department of Pardons and Paroles. This was supplemented with information from the Bureau of Vital Statistics and questionnaires returned from lawyers and prosecutors. Also, some information was taken from the Department of Offender Rehabilitation. R 293-94, DB 39. The records from the Department of Pardons and Paroles included a summary of the police investigative report prepared by a parole officer, an FBI rap sheet, a personal history evaluation, an admissions data summary sheet, and, on occasion, the file might contain a witness statement or the actual police report. R 347. The police report actually appeared in about 25% of the cases. R 348. The Pardons and Paroles Board investigative summaries were always done after conviction. Baldus and Gates again developed a written protocol in an attempt to assist coders in resolving ambiguities. This protocol was developed in part on past experience and in part on a case-by-case basis. R 239, 311. In the Charging and Sentencing Study the coders were given two general rules to resolve ambiguities of fact. The first rule was that the ambiguity ought to be resolved in a direction that supports the determination of the factfinder. The second rule is that when the record concerning a fact is ambiguous the interpretation should support the legitimacy of the sentence. R 423, EG 4. As to each foil the coder had four choices. The response could be coded as 1, showing that the factor was definitely present, or 2, which means that the file indicated the presence of the factor. If the factor was definitely not present, the foil was left blank. In cases where it was considered equally possible for the factor to be absent or present, the coder entered the letter “U.” R 517. For the purpose of making these coding decisions, it was assumed that if the file indicated that a witness who would likely have seen the information was present or if, in the case of physical evidence, it was of the type that the police would likely have been able to view, and if such information did not appear in the Parole Board summaries, then the coder treated that factor as not being present. R 521. In addition to coding questionnaires the coders were asked to prepare brief summaries that were intended to highlight parts of the crime that were difficult to code. R 366. By the end of the summer of 1981 the questionnaires had been coded in Georgia and they were returned to Iowa. R 585. All of the data collected had to be entered onto a magnetic tape, and this process was completed by the Laboratory for Political Research at the University of Iowa. R 595. That laboratory “cleaned” the data as it was keypunched; that is, where an impermissible code showed up in a questionnaire it was reviewed by a student coder who re-eoded the questionnaire based upon a reading of Baldus’s file. R 600-08. After the data gathered for the Charging and Sentencing Study was entered on computer tapes, it was re-coded so that the data would be in a useful format for the planned analysis. The first step of the re-coding of the data was to change all 1 and 2 codes to 1, indicating that the factor was positively present. The procedure then re-eoded all other responses as 0, meaning that the characteristic was not present. R 617-20. It appears to the court that the researchers attempted to be careful in that data-gathering, but, as will be pointed out hereafter, the final data base was far from perfect. An important limitation placed on the data base was the fact that the questionnaire could not capture every nuance of every ease. R 239. Because of design of earlier questionnaires, the coders were limited to only three special precipitating events. There were other questions where there were limitations upon responses, and so the full degree of the aggravating or mitigating nature of the circumstances were not captured. In these situations where there was only a limited number of foils, the responses were coded in the order in which the student discovered them, and, as a consequence, those entered were not necessarily the most important items found with respect to the variable. R 545. The presence or absence of enumerated factors were noted without making any judgment as to whether the factor was indeed mitigating or aggravating in the context of the case. R 384. In the Charging and Sentencing Study as well, there were instances where there was a limit on the number of applicable responses which could be entered. For example, on the variable “Method of Killing,” only three foils were provided. R 461, EG 6A, p. 14. The effect of this would be to reduce the aggravation of a case that had multiple methods of inflicting death. In coding this variable the students generally would list the method that actually caused the death and would not list any other contributing assaultive behavior. R 463. The information available to the coders from the Parole Board files was very summary in many respects. For example, on one of the completed questionnaires the coder had information that the defendant had told four other people about the murder. The coder could not, however, determine from the information in the file whether the defendant was bragging about the murder or expressing remorse. R 467-68. As the witnesses to his statements were available to the prosecution and, presumably, to the jury, that information was knowable and probably known. It was not, however, captured in the study. The Parole Board summaries themselves were brief and the police reports from which the parole officers prepared their reports were typically only two or three pages long. R 1343. Because of the incompleteness of the Parole Board studies, the Charging and Sentencing Study contains no information about what a prosecutor felt about the credibility of any witnesses. R 1117. It was occasionally difficult to determine whether or not a co-perpetrator testified in the ease. One of the important strength of the evidence variables coded was whether or not the police report indicated clear guilt. As the police reports were missing in 75% of the cases, the coders treated the Parole Board summary as a police report. R 493-94. Then, the coders were able to obtain information based only upon their impressions of the information contained in the file. R 349. Some of the questionnaires were clearly mis-coded. Because of the degree of latitude allowed the coders in drawing inferences based on the data of the file, a recoding of the same case by the same coder at a time subsequent might produce a different coding. R 370, 386-87. Also, there would be differences in judgment among the coders. R 387. Several questionnaires, including the one for McCleskey and for one of his co-perpetrators, was reviewed at length during the hearing. There were inconsistencies in the way several variables were coded for McCleskey and his co-perpetrator. R 1113; Res. 1, Res. 2. The same difficulties with accuracy and consistency of coding appeared in the Charging and Sentencing questionnaires. For example, the Charging and Sentencing Study had a question as to whether or not the defendant actively resisted or avoided arrest. McCleskey’s questionnaire for the Charging and Sentencing Study indicated that he did not actively resist or avoid arrest. His questionnaire for the Procedural Reform Study indicated that he did. R 1129-30; Res. 2, Res. 4. Further, as noted above in one situation where it was undoubtedly knowable as to whether or not the defendant expressed remorse or bragged about the homicide, the factor was coded as “U.” Under the protocol referred to earlier, if there was a witness present who could have known the answer and the answer did not appear in the file, then the foil is to be left blank. This indicates that the questionnaire, EG 6B, was not coded according to the protocol at foils 183 and 184. To test the consistency of coding judgments made by the students, Katz tested the consistency of coding of the same factor in the same case as between the two studies as to 30 or so variables. There were 361 cases which appeared in both studies. Of the variables that Katz selected there were mis-matches in coding in all but two of the variables. Some of the mis-matches were significant and occurred within factors which are generally thought to be important in a determination of sentencing outcome. For example, there were mis-matches in 50% of the cases tested as to the number of death eligible factors occurring in the case. Other important factors and the percent of mis-matches are as follows: Number of prior felonies 33% Immediate Rage Motive 15% Execution Style Murder 18% Unnecessary Killing 18% Defendant Additional Crimes 16% Bloody 28% Defendant Drug History 25% Victim Aroused Fear in the Defendant 16% Two or More Victims in All 80% Victim is a Stranger 12% Respondent’s Exhibit 20A, R 1440, et seq. A problem alluded to above is the way the researchers chose to deal with those variables coded “U.” It will be recalled that for a variable to be coded “U” in a given questionnaire, there must be sufficient circumstances in the file to suggest the possibility that it is present and to preclude the possibility that it is not present. In the Charging and Sentencing Study there are an average of 33 variables in each questionnaire which are coded as “U.” The researchers treated that information as not known to the decision-maker. R 1155. Under the protocol employed, the decision to treat the “U” factors as not being present in a given case seems highly questionable. The threshold criteria for assuming that a factor was not present were extremely low. A matter would not have been coded “U” unless there was something in the file which made the coder believe that the factor could be present. Accordingly, if the researchers wished to preserve the data and not drop the cases containing this unknown information, then it would seem that the more rational decision would be to treat the “U” factors as being present. This coding decision pervades the data base. Well more than 100 variables had some significant number of entries coded “U.” Those variables coded “U” in more than ten percent of the questionnaires are as follows (the sample size in the Charging and Sentencing Study is 1,084): Plea Bargaining 445 Employment Status of the Defendant 107 Victim’s Age 189 Occupational Status of the Victim 721 Employment Status of the Victim 744 Defendant’s Motive was Long-Term 284 Hate Defendant’s Motive was Revenge 202 Defendant’s Motive was Jealousy 130 Defendant’s Motive was Immediate 181 Rage Defendant’s Motive was Racial 447 Animosity Dispute While under the Influence of 159 Alcohol or Drugs Victim Mental Defective 625 Victim Pregnant 239 Victim Defenseless due to Disparity in 134 Size or Numbers Victim Support Children 781 Victim Offered No Provocation 192 Homicide Planned for More than Five 496 Minutes Execution-Style Homicide 109 Victim Pleaded for Life 799 Defendant Showed No Remorse for 902 Homicide Defendant Expressed Pleasure With 885 Homicide Defendant Created Risk of Death to 128 Others Defendant Used Alcohol or Drugs 251 Before the Crime Effect of Alcohol on the Defendant 220 Defendant Showed Remorse 913 Defendant Surrendered within 24 Hours 125 Victim Used Drugs or Alcohol Before 244 Homicide Effect of Drugs on Victim 168 Victim Aroused Defendant’s Fear for 220 Life Victim Armed with Deadly Weapon 155 History of Bad Blood Between 173 Defendant and Victim Victim Accused Defendant of 117 Misconduct Victim Physically Assaulted Defendant 159 at Homicide Victim Verbally Threatened Defendant 185 at Homicide Victim Verbally Abused Defendant at 300 Homicide Victim Verbally Threatened Defendant 100 Earlier Victim Verbally Abused Defendant 156 Earlier Victim Had Bad Criminal Reputation 665 Victim had Criminal Record 946 A large number of other variables were coded “U” in more than five percent of the questionnaires. Race of the victim was unknown in 62 cases. Other variables which are often thought to explain sentencing outcomes and which were coded “U” in more than five percent of the questionnaires included: Defendant’s Motive was Sex 68 Defendant’s Motive Silence Witness for 72 Current Crime Dispute with Victim/Defendant over 76 Money/Property Lovers’ Triangle 74 Victim Defenseless due to Old Age 63 Defendant Actively Resisted Arrest 67 Number of Victims Killed by the 66 Defendant Defendant Cooperated with Authorities 72 Defendant had History of Drug and 79 Alcohol Abuse Victim Physically Injured Defendant at 63 Homicide Victim Physically Assaulted Defendant 71 Earlier Many of the variables showing high rates of “U” codings were used in Baldus’s models. For example, in Exhibit DB 83, models controlling for 13, 14 and 44 variables, respectively, are used in an effort to measure racial disparities. In the 13-variable model, five of the variables have substantial numbers of “U” codes. In the 14-variable model, seven variables are likewise affected, and in the 44-variable model, six were affected. Similar problems plagued the Procedural Reform Study. Respondent’s Exhibits 17A, 18A; DB 96A, DB 83, R 1429. Because of the substantial number of “U” codes in the data base and the decision to treat that factor as not present in the case, Woodworth re-coded the “U” data so that the coding would support the outcome of the case and ran a worst ease analysis on five small models. This had the effect generally of depressing the coefficients of racial disparity by as much as 25%. In the three models which controlled for a relatively small number of background variables, he also re-computed the standard deviation based on his worst case analysis. In the two larger models on which he ran these studies, he did not compute the standard deviation, and in the largest model he did not even compute the racial coefficients after conducting the worst case analysis. Accordingly, it is impossible for the court to determine if the coefficient for race of the victim remains present or is statistically significant in these larger order regressions. Both because of this and because the models used in the validating procedure were not themselves validated, it cannot be said that the coding decision on the “U” data made no effect on the results obtained. See generally GW 4, Table 1. In DB 122 and 123 Baldus conducts a worst case analysis which shows the results upon re-coding “U” data so as to legitimize the sentence. Baldus testified that the coding of unknowns would not affect the outcome of his analysis based on the experiments and these exhibits. The experiments do not, however, support his conclusion, and it would appear to the court that the experiments were not designed to support his conclusions. In DB 122 Baldus controls for only three variables; thence, it is impossible to measure the effect of any other variables or the effects that the recoding would have on the outcome. In DB 123 he utilizes a 39-variable model and concludes that on the basis of the re-coding it has no effect on the racial coefficients. Only five of the variables in the 39-variable model have any substantial coding problems associated with them. (For these purposes the court is defining a “substantial problem” as a variable with more than 100 entries coded “U.”) These five variables are the presence of a statutory aggravating factor B3 and B7D, hate, jealousy, and a composite of family, lover, liquor, or barroom quarrel. Baldus did not test any of his larger regressions to see what the effect would be. R 1701, et seq., DB 96A, Schedule 4, DB 122, DB 123, Res. Exh. 47A. In addition to the questionable handling of the “U” codes, there were other factors which might affect the outcome of the study where information was simply unknown or unused. In the Charging and Sentencing Study data related with the response “Other” was not used in subsequent analy-ses. In one factor, “special aggravating feature of the offense,” there were 139 “Other” responses. R 1392, 1437. Cases where the race of the victim was unknown were coded on the principle of imputation, as though the race of the victim was the same as the race of the defendant. R 1096. There were 23 or 24 cases in the Procedural Reform Study and 62 or 63 cases in the Chargin