Ernest DeWayne Jones v. Robert K. Wong

Filing 59

NOTICE OF MOTION AND First MOTION for Hearing Evidentiary Hearing filed by Petitioner Ernest DeWayne Jones. (Attachments: # 1 Exhibit Volume 1 Of Exhibits In Support of Motion For Evidentiary Hearing, # 2 Exhibit Volume 2 Of Exhibits In Support of Motion For Evidentiary Hearing, # 3 Exhibit Volume 3 Of Exhibits In Support of Motion For Evidentiary Hearing, # 4 Exhibit Volume 4 Of Exhibits In Support of Motion For Evidentiary Hearing, # 5 Exhibit Volume 5 Of Exhibits In Support of Motion For Evidentiary Hearing, # 6 Exhibit Volume 6 Of Exhibits In Support of Motion For Evidentiary Hearing)(Daniels, Patricia)

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

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ERNEST DEWAYNE JONES,
Petitioner,

Case No. CV-09-2158-CJC
DEATH PENALTY CASE

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v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1

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VOLUME 1

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A

Declaration of Floyd Nelson

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B

Declaration of Larry Williams

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Declaration of Jimmy Camel

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D

Declaration of James S. Thomson

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Declaration of Quin Denvir

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Declaration of David Baldus

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Declaration of George Woodworth, Ph.D.

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Declaration of Steven F. Shatz

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Declaration of Gerald Uelman

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Declaration of Donald H. Heller

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Transcript of Proceedings From Troy Adam Ashmus v. Robert K. Wong, U.S. District
Court For The Northern District Of California, Case No. C93-0594 (Nov. 19, 2010)

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Transcript of Proceedings From Troy Adam Ashmus v. Robert K. Wong, U.S. District
Court For The Northern District Of California, Case No. C93-0594 (Nov. 22, 2010)

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Legislative History Material Regarding California's Death Penalty Statutes
(Part 1 of 4)

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EXHIBIT

VOLUME 2
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Legislative History Material Regarding California's Death Penalty Statutes
(Part 2 of 4)

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VOLUME 3

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Legislative History Material Regarding California's Death Penalty Statutes
(Part 3 of 4)

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VOLUME 4

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Legislative History Material Regarding California's Death Penalty Statutes
(Part 4 of 4)

VOLUME 5
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Newspaper Articles Regarding California Death Penalty Statutes (Part 1 of 2)

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TAB

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VOLUME 6

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EXHIBIT

Newspaper Articles Regarding California Death Penalty Statutes (Part 2 of 2)

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT A
DECLARATION OF FLOYD NELSON

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Exhibit A
Page 1

Exhibit A
Page 2

Exhibit A
Page 3

Exhibit A
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Exhibit A
Page 5

Exhibit A
Page 6

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT B
DECLARATION OF LARRY WILLIAMS

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Exhibit B
Page 7

DECLARATION

OF LARRY.WILLIAMS

I, Larry Williams, declare as follows:
1.

I was Ernest Jones's cellmate for several months .in 1989 at Folsom State Prison.

In addition to being eellmates, Ernest and I also worked together at the metal fabrication shop
as part of the prison's industrial program.
2.

I arrived at Folsom State Prison in 1987. Folsom had several industrial programs

that inmates were allowed to take part in back then, and when I first arrived, I put my name on
the program's waitlist so that I could have an opportunity to work and earn some money. There
were very few open spots available at that time, though, and the waitlist was long.

It was

considered a privilege to be able to work, and the people in charge of the industrial programs
were quick to remind the workers that it was

a privilege

that could easily be taken away and

given to someone else who was waiting for the opportunity.

In my case, it took nearly two

years before I made it off of the waitlist and was given a job in the prison's metal fabrication
shop.
3.

The inmates who were given work assignments

within the prison's

industrial

program were housed together in the same part of the same building, which at the time was
Building Three.

Each of the buildings at Folsom had an "A" side and a "B" side, and in

Building Three, all of the workers were housed on one side, while all of the non-workers were
housed on the other. Prior to receiving my work assignment, I had been housed on the nonworking side of Building Three; when I found out that I had received my work assignment, I
"

went over to the workers' side and moved into Ernest's cell.
4.

I had not known Frnest very well prior to moving in with him, but as soon as we

began sharing a cell, I could tell that we would get along with each other. He was generally
mild-mannered, and he often had a smile on his face. He kept to himself quite a bit, as did I,
and I did not have to worry about him causing problems with others or bringing trouble back to
the cell. Ernest was from Los Angeles, and although there were a good number of guys back in
those days that were either displaying red colors or blue colors to demonstrate their affiliation

4-w
Exhibit B
Page 8

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Declaration of Larry Williams
Page'20f5

with different gang sets, Ernest did not. As far as I could tell, he was non-affiliated and was
able to get along with guys from a variety of different places and backgrounds.

I felt

comfortable around him, and others seemed to as well.
5.

As Ernest's cellmate, I noticed that although Ernest was usually an easygoing and

upbeat guy, there were occasions when his mood changed and he started feeling down. When
this happened, he became much less talkative to the point where he did not say much at all. I
also noticed a kind of sadness come over him that became apparent in his facial expressions.
was often like he was not there, like his mind was elsewhere.

It

These down moods typically

went away after a bit of time had passed, though, and then he went back to being his usual
smiling self.
6.

When Ernest and I were living together, our weekdays were pretty regimented due

to our work schedules.

We usually got up around 4:00 a.m., .went to the chow hall between

5:00 a.m. and 5:30 a.m., and then moved over to our work assignments by about 6:00 a.m.
Once we got to work, we stayed there through the early part of the afternoon.

Since we were

both assigned to work in the metal fabrication unit, our job was to make a range of different
metal items, such as gun racks for law enforcement, bumpers for patrol cars, and things like
that. We worked in an assembly line setup where each guy in the shop had one or two tasks
that he repeated through the work day, like making a cut or drilling a hole. Aside from a thirty
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minute lunch brea~ we did our work more or less continuously until about 2:00 p.m. or 3:00
p.m. in the afternoon.

After that, we returned to our building, where we were able to take

showers and spend time in our cells.
7.

During the work week, Ernest generally liked to look at magazines and watch

television in our cell in his free time. Going to the prison's yard for exercise was not an option
for workers on weekdays, since yard time was already over by the time we got back from our
industrial programs.

During the weekend, though, Ernest liked to take full advantage of his

yard time. He liked to work out, a~d he got his exercise in a variety of ways, including doing

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Exhibit B
Page 9

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Declaration of Larry Williams
Page 3 of5

calisthenics, running around the yard's track and practicing gymnastic moves, such as flips. It
was a strenuous routine, and one that stuck out in my mind at the time because I did not recall
ever seeing other guys doing flips on the yard.
8.

Although Ernest enjoyed going to the yard because it allowed him to exercise, the

yard was also a dangerous place.

Folsom had a very violent atmosphere back in those days,

and even the slightest displays of disrespect often resulted in stabbings or killings.

On one

occasion, I saw a man get stabbed for simply cutting in line at the canteen. As soon as the guy
who cut in line had gotten to the front, another inmate stabbed him. Nobody else in that line
wanted to appear to be involved with the attack, and so it only became apparent that the attack
had even happened once everyone else left the area and the guy who had been stabbed was still
there, slumped against the wall. On another occasion, I saw a guy get stabbed in the side by the
weight pile. He was able to walk over to where the COs were standing with the piece of metal
that he had been stabbed with sticking out of him, but as soon as he got to the COs, he fell to
the ground. He died a short while later.
9.

Staying safe was a big concern outside of the yard area, as well. Guys sometimes

attacked each other in the dining hall during mealtimes, and we also had to be mindful that
something could always go down when we were on the tier. Our cells were very small - they
were originally meant to be one-man cells, but had been converted into two-man cells 'at some
point before we got there. When we went to sleep at night, we had to lie down in a position
where our feet were pointing out toward the cell doors, with our heads facing the walls. This
position enabled us to better protect our heads in the event that someone tried to attack us by
v.1.\J. or "'pe. ••.. s L vJ.
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sticking their armsAthtough the bars when we were sleeping. These kinds of attacks happened
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from time to time at Folsom, especially between members of the prison's different racial and
ethnic communities.

When there was tension between communities, the guys who were not

affiliated with any of Folsom's gangs had to be extra-careful, as we had nobody backing us up
and were going to be the first targets in these racially:-motivated attacks.

Since Ernest and I

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Exhibit B
Page 10

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Declaration of Larry Williams
Page 4 of5

were in the non-affiliated category, the possibility of being the first victims of those attacks was
something we always had to be mindful of.

to.

A lot of the guys at Folsom who were disturbed by what they were experiencing

there turned to drinking and using drugs.

In our building, it was pretty common for guys to

make homemade alcohol, or pruno, from fruit juice.

Some inmates also crushed up pills and

snorted the resulting powder in order to get high. Marijuana was also available for those who
wanted it. Inmates who drank and did drugs had to be careful not to get too drunk or high,
though, because that was when others took advantage of them. While at Folsom, I saw inmates
who had taken heavy doses of drugs get victimized by others who could overpower them in
. L.w. i",J.ox~.;,..lJ L. W.
their intoxicated state. In one situation, an ~
inmate went so far as to scrape off some

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red dye from a pack of Pall Mall cigarettes and then smear it over.@ ildoRietttee tmnate's lips,
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as if he were a woman wearing lipstick. While they were in the back comer of a cell, Jlre then
went on to completely take the intoxicated inmate's manhood away. I knew the guy that this
happened to pretty well, and as time went on, it happened to him more and more. It hurt just
knowing what he was going through.
11.

Although Ernest did not use drugs in my presence, he did drink from time to time

when he and I were cellmates.

In Ernest's case, drinking put him into a visibly better mood.

He smiled more when he drank, and he got really happy. The drinking eventually got him into
trouble, though. During our last month of living together, our cell was searched and Ernest was
written up for manufacturing

a batch of pruno.

The guards walked by, smelled a bunch of

pruno in our cell, and we both got written up.
12.

After this pruno write-up, I moved to a different cell in Building Three.

As it

turned out, I ended up staying in the industrial program only for a short period after that.
Although I liked my job in the metal fabrication shop well enough, I really disliked that I had to
be strip-searched every single day before I returned from work.

This felt degrading.

Once I

L.W.
Exhibit B
Page 11

LW

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Declaration of Larry Williams
Page 5 of5

had saved up enough money to tide me over for a while, I decided to give up my spot in the
industrial program so that I could focus on doing leatherwork in the hobby shop instead.
13.

I eventually moved to a different building altogether, but I still saw Ernest from

time to time doing his exercises and flips out on the yard. After Ernest left Folsom, I lost touch
with him entirely. Based on his good attitude and the way he was generally able to get along
with people without inviting trouble, I figured that he was going to be alright once his sentence
was up and he made his way back to Los Angeles.

As a result, I was very surprised when I

recently learned that Ernest had been charged with and convicted of murder in the mid-1990s.
I was nev~r contacted by any members of his defense team during his trial, and I was not asked
by anyone to testify as a witness.

If I had been, though, I would have testified to what is

written above.
The foregoing is true and correct and executed under penalty of perjury under the laws
of the United States and the State of California on February ~,

2011.

r

L,W.
Exhibit B
Page 12

LW

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT C
DECLARATION OF JIMMY CAMEL

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Exhibit C
Page 13

Exhibit C
Page 14

Exhibit C
Page 15

Exhibit C
Page 16

Exhibit C
Page 17

Exhibit C
Page 18

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT D
DECLARATION OF JAMES S. THOMSON

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Exhibit D
Page 19

DECLARATION OF JAMES S. THOMSON

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I, James S. Thomson, declare as follows:

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1.

I am an attorney licensed to practice law by the State of California. My law

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practice focuses on criminal litigation in state and federal courts; I litigate trial, appellate, and

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post-conviction cases, with an emphasis on capital cases.

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2.

I am admitted to practice in California state courts, the United States Supreme

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Court; the United States Courts of Appeals for the Sixth and Ninth Circuits; the United States

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District Courts for the Eastern, Northern, Southern, and Central Districts of California; and the

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United States District Courts of Alaska, Montana, and the Eastern District of Tennessee. I also

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have been admitted to practice pro hac vice in cases in the Arizona, Florida, Montana, and

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Nevada state courts, the United States District Courts of Hawai’i and Nevada, and the High

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Court of the Territory of American Somoa.

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3.

I was admitted to practice law in California in May 1978. From 1978 to 1994, I

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maintained a private practice in Sacramento, California. During approximately my first two

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years of practice, my case load consisted primarily of criminal cases, with a small percentage of

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civil matters. Since 1980, I have exclusively represented persons charged with, or convicted of,

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criminal conduct.

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California.

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4.

In 1994, I relocated my law office to its current location in Berkeley,

Since 1982, the substantial majority of my practice has been capital litigation in

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trial, appellate, post-conviction, and clemency proceedings. I have represented approximately

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fifty persons charged with or convicted of capital crimes in trial, appellate, or post-conviction

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proceedings.

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5.

At the trial level, I have represented more than twenty-five defendants in capital

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cases in state courts in California, one defendant in a capital case in Florida, and two defendants

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in capital cases in Montana. Since 1982, when I was first appointed to represent a capital

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defendant, nine of my capital cases in California courts proceeded to trial, and seven of those

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advanced through a penalty phase proceeding. My first capital trial took place in Santa Rosa,

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Sonoma County, on a change of venue from Sacramento County in 1983-1984.
Declaration of James S. Thomson

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Exhibit D
Page 20

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6.

At the post-conviction level, I have represented petitioners in capital cases in

Arizona, California, Montana, Nevada, and Tennessee.
7.

I have represented criminal defendants in complex criminal cases in the United

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States District Courts for the Northern and Eastern Districts of California. I have represented

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seven defendants in federal death penalty cases at the trial level in the Eastern and Northern

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District Courts of California and the District Court of Hawai’i. I was also appointed by the High

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Court of American Samoa to represent a capitally charged defendant. My most recent trial

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occurred in 2009 in the United States District Court for the Northern District of California in

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United States v. Dennis Cyrus, Jr., Case No. 05-00324.

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8.

Currently, I am counsel of record in several capital cases before the California

Supreme Court and the United States District Courts.
9.

I served as Chair and as a Member of the California State Bar Board of Legal

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Specialization, Criminal Law Advisory Commission and the Independent Inquiry and Review

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Panel, Program for Certifying Legal Specialists (1986-1992). I also served for the Sacramento

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County Bar Association as Indigent Criminal Defense Panel Committee Chair (1981-1983), Vice

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Chair (1987), and Member (1980-1989), and the Sacramento County Bar Association Judiciary

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Committee, as Chair, Vice Chair, and Member (1982-1984). During my tenure on the Indigent

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Criminal Defense Panel Committee, I worked with judges and other attorneys to develop criteria,

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evaluate, and classify approximately 250 private attorneys for appointment to cases, including

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capital litigation.

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10.

For almost thirty years, I have been a member and officer of California Attorneys

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for Criminal Justice (CACJ). CACJ is a non-profit California corporation that currently has

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approximately 2,000 members, primarily criminal defense attorneys practicing before state and

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federal courts. In 1994, I was President of CACJ. Before serving as President, I served as

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President-Elect, Vice President, Treasurer, and Secretary. I also have prepared several amicus

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briefs on behalf of CACJ. I have served as Assistant Editor of CACJ’s Forum magazine. I

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chaired the CACJ Death Penalty Committee from 1988 through 1991, and I was Co-Chair in

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2005 and 2006.
Declaration of James S. Thomson

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Exhibit D
Page 21

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11.

I also am a member of the California Public Defenders Association. CPDA is a

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non-profit California corporation with a membership of approximately 4,000 criminal defense

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attorneys in public and private practice. CPDA has provided continuing legal education for

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criminal defense attorneys for almost forty years.

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12.

In addition to my criminal law practice, I have lectured extensively on criminal

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and civil litigation issues at continuing legal education conferences and seminars, including the

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annual CACJ and CPDA Capital Case Defense Seminar (CCDS). In 1988, 1989, and 1990, I

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was Chair of the CCDS Planning Committee. I also served as a member of the CCDS Planning

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Committee in 2005, 2006, and 2008.

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13.

I was an editor and author of the California Death Penalty Defense Manual

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published by CACJ and CPDA in 1985 and subsequent years. I co-authored the Penalty Phase

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Mitigation sections of the 1990 and 1991 Manuals. I was co-editor of the Arizona Capital Case

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Defense Manual published by Arizona Attorneys for Criminal Justice and the Arizona Capital

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Representation Project in 1995.

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14.

I was the Founding President in 1986 and President in 1987 of the Criminal

Defense Lawyers of Sacramento.
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In 1992, I co-founded the Bryan R. Shechmeister Death Penalty College, located

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at the University of Santa Clara School of Law. I continue to coordinate the Death Penalty

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College with the Director and have been a member of the faculty since its inception.

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I am one of the trial attorneys in the Mexican Capital Legal Assistance Program

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sponsored by the Government of Mexico to provide assistance to Mexican nationals facing the

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death penalty in the United States. My area of coverage extends from Kern County to Siskiyou

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County, including Sacramento County, California.

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I have consulted with attorneys in over 200 capital cases involving guilt and

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penalty phase and appellate and post-conviction strategies; selection of defenses; plea

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negotiation; retaining and working with investigators, experts, and other witnesses; development

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and presentation of statutory and constitutional issues; and other litigation questions.

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18.

I have qualified and testified as an expert regarding the standard of practice

Declaration of James S. Thomson

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Exhibit D
Page 22

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applicable to criminal defense attorneys in capital and noncapital cases on several occasions. I

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also have submitted declarations to various courts on right-to-counsel issues in other cases.
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At the request of counsel for Troy Ashmus, I provide this declaration to describe

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the prevailing professional norms in 1986 of defense attorneys representing clients in capital trial

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proceedings. Many of the standards, prevailing practices, and responsibilities that I describe in

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this declaration continue to comprise the current standard of care exercised by defense counsel

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representing defendants charged with capital crimes. For simplicity and clarity, however, I use

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the past tense to describe defense counsel’s duties.
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As a result of my training, background, and experience, I am familiar with the

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standard of care that a defense attorney must meet in order to provide effective representation in

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capital trial proceedings from the time of Mr. Ashmus’s arrest in 1984 through sentencing in

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1986. In addition to my experiences outlined above, at the time, I had or was representing

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numerous capital defendants at the trial level in Sacramento County and, as a result of my work

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on the Indigent Criminal Defense Panel Committee, was familiar with the standards of

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representation practiced, and expected of, trial attorneys representing capital defendants. In

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addition, I have reviewed the testimony and declarations of several attorneys in capital habeas

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proceedings. The descriptions of the prevailing standard of care contained in these declarations

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comport with my own understanding of expectations of trial counsel at the time of the trials in

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those cases.1

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Declaration.
21.

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A list of the material that I reviewed is contained in the Appendix to this

Prior to and at the time of Mr. Ashmus’s trial, the prevailing standard of care of

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attorneys appointed to represent criminal defendants included the duty to conduct a reasonable

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investigation of the circumstances of the case and explore all avenues leading to facts relevant to

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potential guilt or penalty defenses. This responsibility was imposed by case law, professional

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standards, practice materials and manuals, and capital defense trainings, each of which explained

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I was not asked to, and do not offer, any opinions as to whether trial counsel in those
cases complied with the prevailing standards.
Declaration of James S. Thomson

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Exhibit D
Page 23

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the scope of counsel’s duties and responsibilities.
22.

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Beginning as early as 1978 in California, there were seminars and publications

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available to the criminal defense bar involving many subjects relevant to the investigation,

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preparation, and presentation of capital cases.2 Several organizations, including CACJ, CPDA,

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the California Appellate Project (CAP), the Office of the State Public Defender (OSPD), and

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county public defender offices, regularly conducted trainings and seminars in California for

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capital practitioners. In addition, national training programs were regularly sponsored by the

8

NAACP Legal Defense Fund, the National Legal Aid and Defender Association, the Southern

9

Poverty Law Center, and other organizations.

Publications from various criminal defense

10

organizations in California tracked developments in capital cases, promoted successful strategies

11

and practices, and provided trial attorneys with resources to assist in the investigation,

12

development, selection, and presentation of guilt and penalty phase defenses. The California

13

Death Penalty Defense Manual was published in 1980 and updated annually thereafter. The

14

1986 version of the Manual was published in January 1986.
23.

15

In large measure, these trainings and materials drew upon the successful practices

16

employed by attorneys at the trial level in persuading district attorneys to withdraw special

17

circumstances or not seek a death sentence, and juries and judges to acquit defendants of capital

18

crimes, find the special circumstances not true, or return or impose a sentence less than death.

19

These successful practices were regularly disseminated in publications by the OSPD, CAP,

20

CACJ, CPDA, and other organizations.

21

recommendations to defense attorneys contained in the annual revisions to the California Death

22

Penalty Defense Manual and the various training seminars regularly conducted in and outside of

23

California.

24

24.

In addition, these practices formed the basis for

In 1987, the National Legal Aid and Defender Association adopted the Standards

25

for Counsel in Capital Cases (NLADA Standards). These standards “codified” the prevailing

26

national practice of attorneys representing capital defendants that had been developed since the

27
28

2

See, e.g., Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 5.
Declaration of James S. Thomson

5

Exhibit D
Page 24

1

reinstatement of capital punishment following the United States Supreme Court’s decision in

2

Furman v. Georgia, 408 U.S. 238 (1972). As explained above, California had established a

3

state-wide standard of care several years prior to the publication of, and more rigorous than, the

4

NLADA Standards.
25.

5

In 1989, the American Bar Association published Guidelines for the Appointment

6

and Performance of Counsel in Death Penalty Cases (ABA Guidelines), which federal courts

7

have cited in determining whether counsel’s performance satisfied the minimum requirements of

8

the Sixth Amendment to the United States Constitution. The ABA Guidelines track the NLADA

9

Standards, and similarly synthesized the standards of care that had been in existence for several

10

years prior to their publication. The introduction to the 1989 ABA Guidelines states that “[t]hese

11

Guidelines amplify previously adopted Association positions on effective assistance of counsel

12

in capital cases.” American Bar Association Guidelines for the Appointment and Performance of

13

Counsel in Death Penalty Cases 1 (1989). Significantly, in support of its recommendations, the

14

Commentary to the Guidelines repeatedly cites to the 1986 California Death Penalty Defense

15

Manual, other training materials, and sources published prior to Mr. Ashmus’s trial.3 As with the

16
3

17
18
19
20
21
22
23
24
25
26
27
28

See, e.g., American Bar Association Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases at 36 n.5 (citing Dennis Balske, The Death Penalty Trial: A
Practical Guide, The Champion (Mar. 1984), and the 1986 California Death Penalty Defense
Manual, in support of Guideline 1.1.); id. at 36-37, 39 nn.11, 14, & 28 (citing Gary Goodpaster,
The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev.
299 (1983), in support of Guideline 1.1.); id. at 37 n.15 (citing Indiana Public Defender Council,
Indiana Death Penalty Defense Manual (1985), in support of Guideline 1.1.); id. at 75 n.7 (citing
Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58
N.Y.U. L. Rev. 299 (1983), in support of Guideline 8.1.); id. at 75 n.9 (citing Comment, The
Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 U.C. Davis L. Rev. 1221
(1985), in support of Guideline 8.1.); id. at 77 n.1 (citing material in the 1986 California Death
Penalty Defense Manual, in support of Guideline 9.1.); id. at 92 n.2 (citing the 1986 California
Death Penalty Defense Manual, in support of Guideline 11.3.); id. at 92 n.3 (citing Dept. of
Public Advocacy, Kentucky Public Advocate Death Penalty Manual (1983), in support of
Guideline 11.3.); id. at 98 n.10 (citing Indiana Public Defender Council, Indiana Death Penalty
Defense Manual (1985), in support of Guideline 11.4.1.); id. at 100 n.5 (citing Indiana Public
Defender Council, Indiana Death Penalty Defense Manual (1985), in support of Guideline
11.4.2.); id. at 100 n.6 (citing material in the 1986 California Death Penalty Defense Manual, in
support of Guideline 11.4.2.); id. at 103 n.1 (citing Indiana Public Defender Council, Indiana
Death Penalty Defense Manual (1985), in support of Guideline 11.5.1.); id. at 98 n.10 (citing
Tennessee Association of Criminal Defense Lawyers, The TACDL Death Penalty Defense
Manual: Tools for the Ultimate Trial (1985), in support of Guideline 11.5.1.); id. at 36 n.5
(citing Dennis Balske, New Strategies for the Defense of Capital Case, 13 Akron L. Rev. 331
(1979), in support of Guideline 11.5.1); id. at 106 nn.1-2 (citing material in the 1986 California
Declaration of James S. Thomson

6

Exhibit D
Page 25

1

NLADA Standards, the prevailing standards in California in 1986 exceeded the requirements of

2

the ABA Guidelines.4
26.

3

At the time of Mr. Ashmus’s trial, defense counsel understood that representing a

4

defendant in a capital case was a complex and time-consuming endeavor. In addition to the

5

enormous responsibilities normally attendant to preparing to defend against homicide charges,

6

trial counsel was obligated to concurrently investigate and prepare the penalty phase defense.5

7

Trial counsel’s challenges were compounded by counsel’s need to understand and analyze the

8

evidence the prosecution intended to introduce, and the available defense evidence on guilt and

9

penalty issues, before counsel could fully develop and formulate an effective theory of the case

10

and defense strategy for either phase of the trial.6
27.

11

Since the reinstatement of capital punishment in California in 1977, defense

12

attorneys have been aware that successful penalty phase investigation and presentation of

13

compelling mitigating evidence has had a high degree of success.

14

Executive Director of the California Appellate Project, explained in the introduction of the 1986

15

California Death Penalty Defense Manual:

Michael Millman, the

Creative, high-quality lawyering will significantly reduce the chances that any
particular defendant is actually sentenced to death and ultimately executed. The
truth is that energetic representation makes a significant difference even in
apparently “hopeless” cases. The LWOP [life without the possibility of parole]

16
17
18
19
20
21
22
23
24
25
26

Death Penalty Defense Manual, in support of Guideline 11.6.1.); id. at 110 n.3 (citing material in
the 1986 California Death Penalty Defense Manual, in support of Guideline 11.6.2.); id. at 115
n.2 (citing Indiana Public Defender Council, Indiana Death Penalty Defense Manual (1985), and
Dept. of Public Advocacy, Kentucky Public Advocate Death Penalty Manual (1983), in support
of Guideline 11.7.1.); id. at 121 n.3 (citing the 1986 California Death Penalty Defense Manual,
in support of Guideline 11.7.3.); id. at 136-37 nn.3, 4, 9, & 15 (citing material in, or directly to,
the 1986 California Death Penalty Defense Manual, in support of Guideline 11.8.6.); id. at 136
n.5 (citing Indiana Public Defender Council, Indiana Death Penalty Defense Manual (1985), in
support of Guideline 11.8.7.); id. at 137 n.8 (citing Dept. of Public Advocacy, Kentucky Public
Advocate Death Penalty Manual (1983), in support of Guideline 11.8.7.); id. at 140 n.2 (citing
the 1986 California Death Penalty Defense Manual, in support of Guideline 11.9.1.); id. at 142
nn.1, 3, & 5 (citing Indiana Public Defender Council, Indiana Death Penalty Defense Manual
(1985), in support of Guideline 11.9.2.); id. at 142 n.4 (citing material in the 1986 California
Death Penalty Defense Manual, in support of Guideline 11.9.2.).
4

27

5

28

6

See, e.g., Exh. 163 Declaration of Michael Burt in Thomas v. Calderon, at 9 n.2, 18-19.
ABA Guidelines 11.4.1., 11.8.3.
See, e.g., Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 7.
Declaration of James S. Thomson

7

Exhibit D
Page 26

verdicts in dozens of egregious cases in which the prosecution sought death
demonstrate that even where the defendant is accused of multiple grisly murders a
death verdict is not a foregone conclusion.7

1
2

28.

3
4
5

At the time of Mr. Ashmus’s trial, what constituted compelling mitigation was

well-known. In an article published in 1983, Professor Gary Goodpaster, who taught at U.C.
Davis School of Law, explained the obligations of defense counsel:
First, counsel must portray the defendant as a human being with positive qualities.
The prosecution will have selectively presented the judge or jury with evidence of
defendant’s criminal side, portraying him as evil and inhuman, perhaps
monstrous. Defense counsel must make use of the fact that few people are
thoroughly and one-sidedly evil. Every individual possesses some good qualities
and has performed some kind deeds. Defense counsel must, therefore, by
presenting positive evidence of the defendant’s character and acts, attempt to
convince the sentencer that the defendant has redeeming qualities. A true
advocate cannot permit a capital case to go to the sentencer on the prosecution’s
one-sided portrayal alone and claim to be rendering effective assistance.

6
7
8
9
10
11

16

As the second element of the mitigating case, the defense must attempt to show
that the defendant’s capital crimes are humanly understandable in light of his past
history and the unique circumstances affecting his formative development, that he
is not solely responsible for what he is. Many child abusers, for example, were
abused as children. The knowledge that a particular abuser suffered abuse as a
child does not, of course, excuse the conduct, yet it makes the crime,
inconceivable to many people, more understandable and evokes at least partial
forgiveness. Counsel’s demonstration that upbringing and other formative
influences may have distorted the defendant’s personality or led to his criminal
behavior may spark in the sentencer the perspective or compassion conducive to
mercy.8

17

Two years later, in People v. Deere, 41 Cal. 3d 353, 366-67 (1985), the California Supreme

18

Court quoted these passages in support of its observation that “[t]here is no mystery as to the

19

kind of evidence defense counsel should prepare and present at the penalty phase.”

12
13
14
15

29.

20

In 1986, attorneys representing capital defendants were required to conduct an

21

exhaustive investigation of the defendant’s background and social history, make an informed and

22

considered determination of the reasons why the jury should impose a life sentence, and conduct

23

a well-conceived presentation of the mitigation evidence.9 Indeed, the Manual contained the

24
7

25
26
27
28

Michael Millman, Introduction, General Strategy A-2-3, 1986 California Death Penalty
Defense Manual (citing statistics that only one in ten cases charged as a special circumstance
first-degree murder results in a death sentence and noting that “dozens of egregious cases” have
resulted in LWOP verdicts).
8
Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty
Cases, 58 N.Y.U. L. Rev. 299, 317-18 (1983).
9
See, e.g., ABA Guidelines 11.4.1.C; Dennis Balske, The Death Penalty Trial: A
Declaration of James S. Thomson

8

Exhibit D
Page 27

1

training material for a Death Penalty Seminar for Investigators, conducted on October 5, 1985,

2

that cautioned that the “[f]ailure to conduct a thorough investigation may constitute ineffective

3

assistance of counsel” and cited as support for that statement In re Hall, 20 Cal. 3d 40 (1980),

4

People v. Rodriquez, 73 Cal. App. 3d 1023 (1977), and Professor Goodpaster’s article.
30.

5

In order for counsel to make informed strategic decisions concerning the

6

appropriate mitigation to present, the prevailing standard of care required that attorneys

7

appointed to represent capital defendants investigate, review, and integrate into the defense

8

strategy myriad information concerning the client, his family, and the environmental factors that

9

affected their behavior, personality, and mental functioning.10 At the time of Mr. Ashmus’s trial,

10

the information that was required to be explored included, but was not limited to, the client’s and

11

his or her family members’ developmental, medical, and mental health history, educational

12

history, military history, employment and training history, family and social history (including

13

physical, sexual, and emotional abuse), prior criminal history, prior correctional history, and

14

religious and cultural influences.11 As Thomas Nolan stated in his Declaration in Karis v.

15

Calderon, trial counsel’s responsibilities were well-established years before Mr. Ashmus’s trial:

16

In 1982, as today, the standard of practice required penalty phase counsel to

17
18
19
20
21
22
23
24
25
26
27
28

Practical Guide, The Champion 40, 42 (Mar. 1984), reprinted in the 1986 California Death
Penalty Defense Manual (“In order to be able to give the jury a reason not to kill, you must
conduct the most extensive background investigation imaginable.”); Jeff Blum, Investigation In
A Capital Case: Telling The Client’s Story, The Champion 27 (Aug. 1985), reprinted in the
1986 California Death Penalty Defense Manual.
10
See, e.g., ABA Guidelines 11.8.3.F., 11.8.6.; Lois Heaney, Constructing A Social
History, H-47 (1983), reprinted in the 1986 California Death Penalty Defense Manual; Jayson
Wechter, Environmental Factors in Penalty Phase Presentation, 87H-7 reprinted in the 1987
California Death Penalty Defense Manual (Penalty phase “requires a detailed and comprehensive
investigation which should be part biography, part ethnography, part psychological case study,
and part family profile.”); Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 7;
Exh.156 Declaration of Thomas Nolan in Karis v. Calderon, at 8.
11

See, e.g., ABA Guidelines 11.8.6.; Blum, supra, at 27; Casey Cohen, Personal History
Worksheet for Penalty Phase Investigation, H-38-41 in the 1986 California Death Penalty
Defense Manual (outlining the topics and assessment questions, portions of which were drawn
from Robert Carter, Presentence Report Handbook (Jan. 1978)); Mitigating Factors, Death
Penalty UPDATE (1982), reprinted in the 1986 California Death Penalty Defense Manual
(listing potential mitigating factors to consider); Exh. 158 Declaration of Leslie Abramson in
Williams v. Vasquez, at 4-5; Exh. 160 Declaration of Susan Sawyer in Williams v. Vasquez, at 45.
Declaration of James S. Thomson

9

Exhibit D
Page 28

investigate, prepare and consider presenting evidence of the client’s family
history, including family dynamics, any physical abuse, mental and physical
illness, and the family’s socioeconomic status. Then as now, every juror wanted
to know where the defendant came from and how he came to sit before them
convicted of a capital crime. Jurors intuitively understand that some people are
dealt a poor hand in life, through their genetic and social inheritance and their
family environment.12

1
2
3
4

31.

5
6
7
8
9
10
11

At the time of Mr. Ashmus’s trial, counsel routinely sought to collect all

documents concerning the client’s social history and background, including records relating to
the defendant’s parents, siblings, and other family members.13 Such documents often contained
important information relating to the defendant’s mitigating environment in which he or she was
raised, the cause and influences on his or her behavior; and the defendant’s genetic
predisposition to developing mental illness.14

As Jayson Whechter, a criminal defense

investigator in San Francisco in the 1980s, wrote:
Along with interviewing family members about the defendant, a history and
profile should be constructed on the family itself, for in order to understand the
defendant, one must understand his parents, siblings, grandparents, aunts, uncles,
and cousins, and the social dynamics between them.15

12
13
14
15

These documents were essential to the development of an accurate and compelling case in

16
17

12

18

13

19
20
21
22
23
24
25
26
27
28

Exh. 156 Declaration of Thomas Nolan in Karis v. Calderon, at 13.

See, e.g., Patti Nelson, The Stinson Case: A Lawyer’s Approach to Penalty Phase (July
1982), reprinted in the 1986 California Death Penalty Defense Manual; Blum, supra, at 27
(“Places such as schools, rehabilitation programs, hospitals, prisons, summer camps, etc., harbor
documents that chart your client’s development and accurately record physical or emotional
problems, life changing events, specific needs, and professional recommendations.”); Exh. 164
Declaration of Jack M. Earley in Wrest v. Calderon, at 7-9; Exh. 162 Declaration of Michael N.
Burt in In re Clark, at 12; Exh. 157 Declaration of Jack M. Earley in Williams v. Vasquez, at 910, 37; Exh. 156 Declaration of Thomas Nolan in Karis v. Calderon, at 15.
14
See, e.g., Lois Heaney, Preparing the Penalty Phase, H-52 (1983), reprinted in the 1986
California Death Penalty Defense Manual (“In almost every case sufficient digging will uncover
some very difficult and traumatic experiences in the defendant’s background.”); Michael
Millman, Law Related to Penalty Phase Investigation, Death Penalty Workshop for
Investigators, conducted on October 5, 1985, H-35, reprinted in the 1986 California Death
Penalty Defense Manual (listing mitigating factors from California Supreme Court decisions
including parental psychological problems, difficult family life, and emotional disturbances);
Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 9; Exh. 157 Declaration of Jack
M. Earley in Williams v. Vasquez, at 9.
15
Wechter, supra, at 87H-8; see also Exh. 162 Declaration of Michael N. Burt in In re
Clark, at 10 (collecting “data regarding Petitioner’s family medical and psychiatric history” “is
an absolute prerequisite to any competent evaluation by mental health experts”).
Declaration of James S. Thomson

10

Exhibit D
Page 29

1

mitigation because they provided contemporaneous evidence of the events and influences

2

affecting the client’s life, were potential sources of witnesses and leads to other documents, and

3

had particular credibility with juries, as they almost always were created prior to the capital

4

crime.
32.

5

Counsel’s obligation to collect records was independent of the discovery provided

6

by the State. For many reasons, the defense was in a better position to collect such records.

7

First, defense counsel had a wealth of information unavailable to the State that contained leads to

8

institutions and persons possessing relevant records. Second, capital defense attorneys had a

9

more sophisticated understanding of mitigation than most prosecutors and thus were cognizant of

10

the need to collect more than the obvious documents, such as the defendant’s educational or

11

criminal records.

12

persistence and knowledge of the document maintenance practices of various institutions in order

13

to obtain complete sets of documents.
33.

14

Third, defense counsel were aware that record collection often required

At the time of Mr. Ashmus’s trial, the prevailing standard of care also required

15

capital defense attorneys to interview persons regarding all potential mitigation themes,

16

including, but not limited to, family members, friends, neighbors, teachers, co-workers,

17

employers, law enforcement personnel, psychologists, physicians, counselors, and institutional

18

personnel.16 Identifying and interviewing potential witnesses required a systematic approach,

19

with adjustments made to the investigation plan as information was obtained and witnesses were

20

interviewed. Trial counsel did not fulfill his or her obligations by focusing the investigation on a

21

small set of witnesses or limiting the inquiry to a specific time period or potential mitigation

22

theme. For example, trial counsel could not confine the investigation to teachers to the exclusion

23

of other witnesses such as juvenile authorities.17 Only after a thorough investigation and careful

24
25
26
27
28

16

See, e.g., Balske, supra, at 44 (“Interview anyone you can find who has had any contact
with the defendant.”); id. at 45 (“don’t overlook persons like next-door neighbors”); Exh. 157
Declaration of Jack M. Earley in Wrest v. Calderon, at 8; Exh. 156 Declaration of Thomas Nolan
in Karis v. Calderon, at 13-15.
17
See, e.g., Wechter, supra, at 87H-8 (noting need to interview institutional personnel);
Exh. 160 Declaration of Susan Sawyer in Williams v. Vasquez, at 5.
Declaration of James S. Thomson

11

Exhibit D
Page 30

1

consideration of the various options could an informed decision be made about what mitigation

2

should be presented at trial; predetermining the penalty phase presentation by limiting the scope

3

of the required investigation was contrary to the prevailing standards of trial attorneys in 1986.
34.

4

As the prevailing standard of care in 1986 required trial counsel to conduct a

5

thorough investigation, it was incumbent upon counsel to employ trained guilt and sentencing

6

investigators in the development and presentation of defenses at trial.18

7

routinely retained and used experienced, knowledgeable investigators to assist in the

8

investigation and preparation of a capital case.

9

investigators were employed, however, trial counsel was required to maintain responsibility for

10

the investigation and was not permitted to delegate strategic decision-making to investigators or

11

others.19

12

counsel evaluated the information previously developed.20
35.

13

Defense counsel

Even when experienced guilt and penalty

Counsel directed and controlled the investigation, guiding the investigators after

As the mitigation investigation advanced, trial counsel was required to integrate

14

the emerging information into the investigation and development of a penalty phase defense.21

15

This required trial counsel to reformulate potential mitigation themes and appropriately re-direct

16

questioning of potential witnesses.22 This was particularly true when investigating sensitive

17
18
19
20
21
22
23
24
25
26
27
28

18

See, e.g., ABA Guidelines 11.4.1; Exh. 163 Declaration of Michael Burt in Thomas v.
Calderon, at 12 & n.10; Heaney, Penalty Phase, supra, at H-61 (critical to choose the proper
person to conduct the social history investigation); Exh. 157 Declaration of Jack M. Earley in
Williams v. Vasquez, at 36 (“A reasonably competent counsel in 1982 would have been aware
that investigators specially trained to gather social history information should have been assigned
to that task.”).
19

See, e.g., Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 10; Exh. 158
Declaration of Leslie Abramson in Williams v. Vasquez, at 5; Exh. 159 Declaration of Michael
Adelson in Williams v. Vasquez, at 4; Exh. 160 Declaration of Susan Sawyer in Williams v.
Vasquez, at 4.
20

See, e.g., Haney, Penalty Phase, supra, at H-61-62 (crucial for trial counsel to “stay
integrated” in the social history investigation process); Exh. 157 Declaration of Jack M. Earley in
Williams v. Vasquez, at 9; Exh. 158 Declaration of Leslie Abramson in Williams v. Vasquez, at 5;
Exh. 159 Declaration of Michael Adelson in Williams v. Vasquez, at 4; Exh. 160 Declaration of
Susan Sawyer in Williams v. Vasquez, at 4-5.
21
ABA Guidelines 11.7.1.
22

See, e.g., Exh. 163 Declaration of Michael Burt in Thomas v. Calderon, at 10 & n.7.

Declaration of James S. Thomson

12

Exhibit D
Page 31

1

issues such as mental illness, physical, psychological, and sexual abuse, and neglect. 23 As guilt

2

phase and mitigation evidence was uncovered and developed, effective counsel integrated it into

3

the trial strategy.

4

36.

After documents had been gathered and witnesses interviewed, counsel was able

5

to ascertain the significant events that had occurred throughout the defendant’s life.24 This

6

provided a guide for understanding how genetic, environmental, psychological, familial, and

7

cultural factors had affected the defendant’s development, personality, mental functioning, and

8

behavior and further formed the bases for constructing an accurate and reliable social history.25

9

See, e.g., American Bar Association, Toward a More Just and Effective System of Review in

10

State Death Penalty Cases 50 (1990) (“penalty phase preparation requires extensive and

11

generally unparalleled investigation into personal and family history”) (citing Gary Goodpaster,

12

The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev.

13

299 (1983)).26 A complete and accurate social history can only be created by reviewing the

14

defendant’s documentary history and interviewing all significant persons having knowledge of

15

the defendant’s life.

16
17
18
19
20
21

23

See, e.g., Balske, supra, at 44 (“This message [that counsel needs to “know the worst as
well as the best things about the client”] takes time to spread and often will require repeated
visits with the respective witnesses before it will bear fruit, particularly if the facts involve
sibling disclosure of parental abuse and other highly personal matters.”); Blum, supra, at 28-29
(“Realize that certain information such as child sexual abuse or drug problems will not be easily
shared with a stranger.”).
24
See, e.g., Heaney, Social History, supra, at H-48 (“A social history supplies the
background information about a client, from which a coherent presentation at the penalty phase,
and in some cases the guilt phase, can be made.”).

22

25

23

26

24
25
26
27
28

See, e.g., Exh.156 Declaration of Thomas Nolan in Karis v. Calderon, at 8.

This Report contained the American Bar Association’s Recommendations Concerning
Death Penalty Habeas Corpus and Related Materials from the American Bar Association
Criminal Justice Section’s Project on Death Penalty Habeas Corpus. The Report’s Task Force
was co-chaired by Chief Justice Malcolm Lucas and Fifth Circuit Judge Alvin Rubin. The Task
Force, formed in 1988 “to study judicial review of cases in which defendants have been
sentenced to death,” ABA Report at 5, conducted public hearings in Atlanta, Dallas, and San
Francisco. One of the major issues addressed by the Task Force was ensuring the quality of
representation at the trial court level prior to adoption of restrictions on post-conviction judicial
review of capital cases. Among witnesses who testified before the Task Force were California
practitioners with knowledge of the prevailing standard of care and the deficiencies at the trial
court level.
Declaration of James S. Thomson

13

Exhibit D
Page 32

37.

1

At the time of Mr. Ashmus’s trial in 1986, it was standard practice for defense

2

counsel in capital cases to retain and present the testimony of a social history expert.27 To

3

properly prepare a social historian to develop and testify about a capital defendant’s psychosocial

4

history, such an expert necessarily was provided with and reviewed all relevant records for the

5

defendant and his family. In addition, the expert needed to interview the defendant and speak

6

with family members, friends, and others with information about the defendant’s life at his

7

various stages of development and/or review the notes of interviews that had been conducted by

8

the defense team with persons other than the defendant who possessed potentially relevant

9

information.
38.

10

In addition employing the services of a social historian, reasonably effective

11

counsel in 1986 would have retained, worked with, directed, and presented mental health experts

12

who could testify, among other things, to the existence of a mental disorder or dysfunction, the

13

etiology of such conditions, and the effect that such conditions had on, or contributed to, the

14

defendant’s functioning and behavior throughout his or her life.28 Trial counsel was obligated to

15

control the selection and preparation of experts; ensure that such experts possessed relevant

16

background and social history information about the defendant, including the penalty phase

17

mitigation described above; follow up on the experts’ recommendations concerning potential

18

investigation and the need for additional expert services; educate the experts about their role in

19

the case and the legal significance of their testimony, including the scope and definition of

20

mitigation, of which many mental health experts in the mid-1980s were not familiar; guide the

21

formulation of their opinions prior to their testimony to ensure proper framing of the scope of

22

their testimony and limiting cross-examination; and prepare them for testifying, including pre-

23

reviewing potential exhibits.29

24
27

25
26
27
28

See, e.g., Nelson, supra (recounting the use of a psychologist to provide the jury with
client’s life story); Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 9-10; see
also ABA Guidelines 11.4.1.D.7., 11.8.3.F.2.
28
See, e.g., ABA Guidelines 11.4.1.D.7., 11.8.3.F.2.; Millman, Penalty Phase Investigation,
supra, at H-37 (listing numerous types of experts that courts had approved funding for pursuant
to Penal Code section 987.9); Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 8.
29

See, e.g., Exh. 164 Declaration of Jack M. Earley in Wrest v. Calderon, at 5-7, 10-11;

Declaration of James S. Thomson

14

Exhibit D
Page 33

39.

1

As was the prevailing standard of care for capital defense attorneys in 1986,

2

counsel also routinely investigated, developed, and presented evidence that the defendant would

3

not pose a danger and would adjust well in prison if sentenced to life without the possibility of

4

parole.30 Frequently, this was accomplished through experts who drew upon the defendant’s

5

social history, adjustment to structured and institutional settings, and the likely conditions under

6

which the defendant would serve an LWOP sentence as well as opining upon the defendant’s

7

likely future adjustment. Similarly, in appropriate cases, trial counsel was obligated to direct the

8

jury’s attention to the mitigating evidence presented through lay witnesses or documents in

9

arguing that a defendant would not pose a danger if sentenced to LWOP.
40.

10

The sources of evidence to support future adjustment mitigation included, but

11

were not limited to, the defendant’s prior institutional history, medical history, mental health

12

history, developmental history, educational history, employment and training history, and prior

13

criminal history, as well as interviews with family members, friends, neighbors, teachers, co-

14

workers, law enforcement personnel, counselors, correctional officers, and jail personnel

15

regarding the defendant’s future positive adjustment to incarceration.31 In addition to obtaining,

16

reviewing, and considering the presentation of such information, trial counsel was obligated to

17

account for the possibility that the prosecution might seek to introduce evidence about the

18

defendant’s prior conduct while incarcerated.
41.

19
20

Indeed, defense counsel’s duty to investigate the aggravating evidence the

prosecutor was likely to present either in its case in chief or as impeachment or rebuttal was

21
22

Exh. 157 Declaration of Jack M. Earley in Williams v. Vasquez, at 9.
30

23
24
25
26
27
28

See, e.g., ABA Guidelines 11.8.6.B.6.; Nelson, supra (recounting the testimony of
correctional expert Ray Procunier); Balske, supra, at 46 (“correctional officers can testify to the
availability of secure facilities for incarceration of inmates serving life or life-without-parole
sentences”); Mitigating Factors, supra, at H-179 (noting that good adjustment to prison life and
lack of a future danger was a factor used to grant clemency); Exh. 157 Declaration of Jack M.
Earley in Williams v. Vasquez, at 36 (noting that in 1982 “individuals like Dr. [Craig] Haney,
with sufficient education, training, and experience as mental health professions and correctional
experts, were available to consult with counsel regarding the advisability of offering an opinion
regarding prison adjustment and could, if appropriate, provide a reliable opinion with the
parameters of the Murtishaw[, 29 Cal.3d 733 (1981)] decision.”).
31
See, e.g., Blum, supra, at 28.
Declaration of James S. Thomson

15

Exhibit D
Page 34

1

coextensive with the duty to investigate, develop, and present mitigating evidence.32

2

prevailing standard of care in 1986 required defense counsel to conduct an investigation of the

3

defendant’s criminal history and account for the possibility that the prosecution might seek to

4

introduce evidence about the defendant’s prior criminal conduct at the guilt or penalty phases of

5

the trial.33 Counsel’s duties included collecting and reviewing materials that may serve to rebut

6

potential aggravating evidence, collecting and reviewing evidence of the defendant’s

7

psychological and mental conditions that might support possible defenses to the aggravating

8

nature of the criminal history, and directing further investigation as warranted by the unique

9

circumstances of the past criminal behavior.34
42.

10

The

In presenting the mitigation themes at trial, counsel was expected to use lay

11

witnesses to document important facts, official records and other written material to document or

12

corroborate witness testimony about important facts, and expert witnesses to interpret the

13

defendant’s social history35 In preparing for and presenting evidence in the penalty phase,

14

capital defense counsel was expected to select and prepare witnesses who could and would

15

provide testimony consistent with and corroborative of the mitigation themes.

16

counsel’s ability to fulfill this duty was dependent upon whether counsel conducted a reasonable

17

investigation, counsel had the distinct obligation to organize and structure the selection and

18

preparation of evidence and witnesses into a forceful, unified presentation that was designed to

19

be internally consistent and corroborated.36 The prevailing standards of care required capital

20
21
22
23
24
25
26

32

See, e.g., ABA Guidelines 11.8.5.
See, e.g., Exh. 156 Declaration of Thomas Nolan in Karis v. Calderon, at 35; Exh. 161
Deposition of Thomas Nolan in Beardslee v. Woodford, at 42 (discussing possible impeachment
when a client testifies).
34
See, e.g., Gail Weinheimer & Michael Millman, Legal Issues Unique to the Penalty Trial,
The Champion 33, 34-36, 37-38 reprinted in the 1986 California Death Penalty Defense Manual
(outlining challenges to aggravating evidence); General Principles Governing the Admissibility
of Evidence in Aggravation, H-113-126 in the 1986 California Death Penalty Defense Manual;
Evidence of Criminal Activity Involving the Use or Threat of Force or Violence: Principles of
Exclusion, H-127-148 in the 1986 California Death Penalty Defense Manual; Exh. 161
Deposition of Thomas Nolan in Beardslee v. Woodford, at 114.
33

35

27
28

Although

See, e.g., ABA Guidelines 11.8.3, 11.8.6.
See, e.g., Exh. 157 Declaration of Jack M. Earley in Williams v. Vasquez, at 34-35; Exh.
164 Declaration of Jack M. Earley in Wrest v. Calderon, at 24-25, 26.
36

Declaration of James S. Thomson

16

Exhibit D
Page 35

1

defense counsel to ensure that witnesses understood their role and the purpose and import of

2

their testimony, prepared them to testify, and elicit mitigating information that they possessed.
43.

3

In determining which witnesses to present, capital defense counsel was expected

4

to select witnesses with an appreciation of their relative credibility and with the goal of

5

presenting witnesses who had experiential knowledge about the client or the client’s family

6

across time periods, in different settings, and from different perspectives.37 Counsel was also

7

obligated to use all available, admissible documents to augment testimony, integrate witnesses’

8

conclusions or observations with examples, and buttress the strength of evidence supportive of a

9

mitigation theme.38 The introduction to the penalty phase section of the 1986 California Death

10

Penalty Defense Manual stated trial counsel’s obligation succinctly: “counsel should err on the

11

side of inclusion, and proffer all potentially mitigating evidence that is tactically advantageous to

12

the defendant. It is for the courts, and not counsel, to determine the scope of evidence admissible

13

in mitigation.”
44.

14

At the time of Mr. Ashmus’s trial, the importance of a coherent and compelling

15

penalty phase argument was well-accepted among capital defense attorneys. As the introduction

16

to the penalty phase argument section of the 1986 California Death Penalty Manual stated: “The

17

closing arguments of counsel are a critical stage of the penalty trial. For defense counsel there

18

may be no more awesome task than delivering a plea for life.”39 Counsel was responsible for

19

educating the jury as to the relevance of the testifying to the mitigation themes and what

20

conclusions defense counsel wanted the jury to draw about the witnesses’ credibility,

21

presentation, and affect.40 In fulfilling the latter duty, trial counsel was expected to prevent the

22

jury from forming an inaccurate impression of the defendant’s background, particularly if

23
37

24
25
26
27
28

See, e.g., Blum, supra, at 29.

38

See, e.g., ABA Guidelines 11.8.6.C.; Balske, supra, at 44 (important to have lay
witnesses “testify anecdotally about incidents in the defendant’s life”); Exh. 164 Declaration of
Jack M. Earley in Wrest v. Calderon, at 9.
39
Introduction, Penalty Phase Argument, H-225, 1986 California Death Penalty Defense
Manual.
40
See, e.g., Dennis Balske, Putting it All Together: The Penalty-Phase Closing Argument,
The Champion 47, 48-51, reprinted in the 1986 California Death Penalty Defense Manual.
Declaration of James S. Thomson

17

Exhibit D
Page 36

Exhibit D
Page 37

1

APPENDIX

2

DOCUMENTS REVIEWED

3
4

Declaration of Thomas Nolan in Karis v. Calderon, January 16, 1995

5

Declaration of Jack Earley in Williams v. Vasquez, May 10, 1993

6

Declaration of Leslie Abramson in Williams v. Vasquez

7

Declaration of Michael Adelson in Williams v. Vasquez

8
9
10
11
12

Declaration of Susan Sawyer in Williams v. Vasquez, June 1993
Deposition of Thomas Nolan in Beardslee v. Woodford, August 25, 2000
Declaration of Michael Burt in In re Clark, March 20, 1992
Declaration of Michael N. Burt in Thomas v. Calderon, April 15, 1996
Declaration of Jack Earley in Wrest v. Calderon, April 25, 1996
Declaration Of Lorelei Sontag, Ph.D., November 1, 2009

13
Declaration Of George Woods, M.D., November 2, 2009
14

Declaration Of Craig Haney, Ph.D., October 28, 2009

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Declaration of James S. Thomson

19

Exhibit D
Page 38

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT E
DECLARATION OF QUIN DENVIR

26
27
28
Exhibit E
Page 39

DECLARATION OF QUIN DENVIR

1
2

I, Quin Denvir, declare as follows:

3

1.

I am an attorney licensed to practice law in California since 1971. I received a

4

Bachelor’s degree from the University of Notre Dame in 1962 and a Masters degree from the

5

American University in 1966. I served in the United States Navy, Supply Corps from 1962-

6

1966, and retired at the rank of Lieutenant. I received my Juris Doctorate degree from the

7

University of Chicago in 1969. I was a member of the University of Chicago Law Review and

8

Order of the Coif.

9

2.

From 1969-1970, I was an associate with the law firm Covington & Burling, in

10

Washington D.C. From 1971-1973, I was a Directing Attorney of the California Rural Legal

11

Assistance, Inc. From 1974-1975, I was a deputy public defender with the Monterey County

12

Public Defender’s Office and defended numerous clients charged with misdemeanors and

13

felonies. In 1975 then-Governor Jerry Brown appointed me Chief Counsel for the California

14

State Department of Health. I maintained that position through 1977, when I was the appointed

15

the State Public Defender for the State of California. I was reappointed and served in that

16

capacity until 1983.

17

3.

From 1984-1996, I maintained a private practice, specializing in criminal

18

defense representation at the trial, appellate and post-conviction levels. From 1996-2005, I was

19

the Federal Defender for the Eastern District of California. In this capacity, I litigated complex

20

and high profile prosecutions and argued cases before the United States Supreme Court. From

21

1996-1998, I was lead defense counsel in the prosecution of Theodore Kaczynski on federal

22

capital charges. The prosecution of Mr. Kaczynski was resolved by a plea to Life Without the

23

Possibility of Parole (LWOP). Since 2006, I have maintained a private practice.

24

4.

I have briefed and argued three cases before the United States Supreme Court,

25

over twenty-five cases before the Ninth Circuit Court of Appeals, over twenty-five cases before

26

the California Supreme Court and over fifty cases before the California Court of Appeal.

27
28

5.

I received the Annual Award in 1989 and the President’s Award for a lifetime

achievement in 1998 from the California Attorneys for Criminal Justice (CACJ). I also have

1

Exhibit E
Page 40

1
2

received the California Public Defenders Association (CPDA) Special Recognition Award.
6.

I have been asked by the current attorneys for Troy Adam Ashmus to describe

3

the prevailing standard of care attorneys representing individuals facing capital charges

4

exercised or should have exercised in preparing for and investigating, developing, and

5

presenting a penalty phase defense in California in 1986. Counsel has also asked me to review

6

several declarations and testimony of attorneys describing the standard of care applicable to

7

capital cases that were pending between 1981 and 1988 to opine on the accuracy of those

8

descriptions (but not on the conclusions of whether trial counsel in those cases rendered

9

effective assistance of counsel). The documents that were provided to me are the following:

10

Declaration of Thomas Nolan in Karis v. Calderon, January 16, 1995; Declaration of Jack

11

Earley in Williams v. Vasquez, May 10, 1993; Declaration of Leslie Abramson in Williams v.

12

Vasquez, June 8, 1993; Declaration of Michael Adelson in Williams v. Vasquez, June 8, 1993;

13

Declaration of Susan Sawyer in Williams v. Vasquez, June 1993; Deposition of Thomas Nolan

14

in Beardslee v. Woodford, August 25, 2000; Declaration of Michael Burt in In re Clark, March

15

20, 1992; Declaration of Michael N. Burt in Thomas v. Calderon, April 15, 1996; and

16

Declaration of Jack Earley in Wrest v. Calderon, April 25, 1996.

17

7.

Following the reinstatement of capital punishment in California, the Office of

18

the State Public Defender (OSPD) began to collect, analyze, and disseminate information to

19

California defense attorneys concerning capital developments and strategies. In June 1979, the

20

OSPD began publishing Death Penalty UPDATE, which summarized recent case law, court

21

orders, and developments in capital trials and appellate proceedings in California and other

22

jurisdictions. In May 1980, the Office of the State Public Defender, in cooperation with CACJ

23

and CPDA, published and distributed the California Death Penalty Manual, the purpose of

24

which was to provide guidelines and assistance to attorneys appointed to represent capitally

25

charged or convicted individuals. To provide information to California defense practitioners

26

and assess the trends in the prosecution of capital cases, the OSPD tracked cases in which

27

capital charges had been filed and monitored them through resolution, whether by plea or jury

28

verdict. As the agency represented individuals appealing felony convictions, it was privy to the

2

Exhibit E
Page 41

1

trial record in many cases that resulted in murder convictions, including the nature of the crime,

2

and if it was a capital case, the facts that were presented in both aggravation and mitigation.

3

The data concerning developments at the trial level provided critical information to California

4

defense practitioners in the formulation of trial, appellate, and post-conviction strategies.
8.

5

In 1986, the prevailing standard of care was primarily influenced by the

6

successes attorneys had in securing a non-capital conviction or an LWOP or other non-death

7

sentence.

8

appropriate, in subsequent cases. In cases where the crime was particularly aggravated, either

9

because of the number of individuals killed, the manner in which they were murdered, or the

10

particular vulnerable nature of the victim, the conduct undertaken by the defense attorney to

11

secure an LWOP verdict warranted scrutiny and emulation.1
9.

12

The strategies that produced such outcomes were studied and adopted, where

During my tenure as the State Public Defender, my staff sought to obtain

13

information about successful trial practices and to include those strategies in training material

14

and develop recommendations for investigating and presenting compelling mitigation themes,

15

presenting mitigation in a manner that limited the opportunity for the introduction of

16

aggravating evidence, and combining the introduction of documents and testimony to present a

17

coherent and credible penalty phase defense, as well as other standards that defined practice of

18

litigating a penalty phase case.

19

California trial courts were routinely reported in publications, such as Death Penalty UPDATE,

20

CACJ’s Forum, the National Association of Criminal Defense Lawyers’ The Champion,

21

CPDA’s California Defender (beginning in 1985), and others.

22

circulated and routinely relied upon by counsel representing capitally charged individuals.
10.

23

Accounts of LWOP verdicts and other developments in

These publications were

In the mid 1980s, and in particular in and around 1986, several years of

24
25
26
27
28

1

In the early 1980s, soon after the current death penalty statute was enacted, defense
attorneys successfully avoided the imposition of the death penalty in cases involving extremely
aggravating facts. See, e.g., People v. Freddie White, Alameda County Superior Court Nos.
68512, 68513 (LWOP sentence imposed on September 12, 1980, following convictions for
three separate killings); People v. Buono, Los Angeles Superior Court No. A354231 (LWOP
sentence imposed on January 9, 1984, following convictions for nine murders with related
kidnapping and sexual assault charges).

3

Exhibit E
Page 42

1

successful trials results helped define an attorney’s responsibilities and the community’s

2

expectations of performance. These cases, the experiences of the attorneys who tried them, and

3

state and federal court decisions defining and explaining the scope of potentially relevant

4

evidence in a penalty phase proceeding further refined and described the prevailing standard of

5

care. Several cases demonstrate that success in avoiding the imposition of the death penalty,

6

despite the aggravating nature of the murder or murders, hinged upon counsel’s development

7

and presentation of mitigating evidence. For example, in 1984 in People v. Martin Trillo,

8

Sacramento County Case No. 61425, Mr. Trillo was sentenced to LWOP after trial counsel

9

presented evidence of Mr. Trillo’s psychiatric difficulties, despite his having been convicted of

10

killing two women during separate burglary attempts. In People v. Brandon Tholmer, Los

11

Angeles Case No. A396284, a jury returned an LWOP verdict on August 8, 1986, after having

12

convicted Mr. Tholmer of murdering four elderly women. The jury considered Mr. Tholmer’s

13

low intelligence and troubled background in reaching this verdict. In People v. Henry Pope,

14

Sacramento Superior Court Case No. 73056, the jury returned an LWOP verdict on January 14,

15

1988, after convicting him of murdering a Sacramento couple.

16

mitigation included Mr. Pope’s history of deprivation in Mississippi and his reputation as a

17

respected and productive person among his peers. In 1985, the judge in People v. Bennie Lee

18

Polecat, Tulare County Superior Court No. 21533, modified the jury’s verdict of death, stating

19

“[t]he evidence was clear that the defendant’s mental capacity was substantially impaired by

20

reason of chronic mental disease and at about the time of the murder, the defendant was

21

showing signs of acute psychosis…. Although not amounting to a legal defense to his crime,

22

such impairment is clearly a factor in mitigation.” On October 1985, a jury returned a LWOP

23

verdict for convicted double murderer Thomas Marston based on the mitigation presented

24

about Mr. Marston’s life. These and other cases established not only trial counsel’s obligation

25

to investigate fully the client’s background, character, and functioning, but also that such

26

investigation could result in a sentence less than death.2

Evidence presented in

27
2

28

These anecdotal accounts were further confirmed by statistics maintained and published
by the OSPD. Between 1997 and 1989, district attorneys throughout California filed one or

4

Exhibit E
Page 43

1

11.

Based on my experience, the declarations and deposition provided to me by

2

counsel accurately describe and explain the prevailing standard of practice of attorneys

3

representing individuals capitally charged in California in 1986. The prevailing standard of

4

care required attorneys, in broad terms, to conduct a thorough investigation into the client’s

5

life, his or her life history, including investigating the defendant’s parents and their histories,

6

and to investigate, develop, and present available evidence of mental illness and dysfunction

7

through lay and expert witnesses and documents. More specifically, it was, and continues to

8

be, the attorney’s responsibility to guide the investigation and educate him or herself as well as

9

the guilt and penalty investigators about the relevance and import of information sought and

10

discovered, as well as informing the investigator about the types or themes of information that

11

might be relevant. It was also the attorney’s responsibility to focus or redirect the investigators,

12

when appropriate, to areas of mitigation evidence revealed by discovery provided by the

13

District Attorney or uncovered during the defense’s own investigation and to do so continually

14

throughout the course of the investigation.

15

12.

In the mid 1980s, defense attorneys in the death penalty community knew, or

16

reasonably should have known, that evidence regarding abuses a client suffered, including

17

physical, emotional and sexual abuse, neglect, deprivation, suicidality, odd behavior, and

18

psychological developmental delays constituted admissible, relevant mitigation.

19

mitigation themes that counsel practicing in California did or should have investigated,

20

developed, and presented in the penalty phase of a capital trial included familial history of

21

mental illness, and evidence of non-aggression and future positive adjustment to prison.

22

13.

Other

It was customary for capital defense attorneys to consult with and present the

23

testimony of appropriate experts, including psychiatrists and psychologists, to help explain the

24

significance and relevance of the client’s behavior throughout his or her life and around the

25

time of the crime. Similarly, it was the prevailing standard of care to provide experts with

26

relevant documents, seek their opinion on the significance of the information contained therein,

27
28

more special circumstance allegations in an average of 278 cases each year. Of those cases,
however, only an average of 26 death sentences were imposed annually.
5

Exhibit E
Page 44

Exhibit E
Page 45

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT F
DECLARATION OF DAVID BALDUS

26
27
28

Exhibit F
Page 46

DECLARATION OF DAVID C. BALDUS

1
2

I, David C. Baldus, declare as follows:

3

1.

4
5

I am the Joseph B. Tye Professor at the University of Iowa College of Law. A

copy of my curriculum vita is attached to this declaration as Appendix A.
2.

I obtained a B.A. from Dartmouth College in 1957, a M.A. in Political Science

6

from the University of Pittsburgh in 1962, and a L.L.B. and L.L.M. from Yale Law School in

7

1964 and 1969 respectively.

8

3.

Since 1969, I have been employed at the University of Iowa College of Law as an

9

Associate Professor (1969-1971), Professor (1972-1983), and the Joseph B. Tye Professor (1983-

10

present). During my academic career, I have taught courses on criminal law, federal criminal

11

law, capital punishment, and statistical methods for lawyers.

12

4.

From 1988 until 1991, I served as a Special Master to the New Jersey Supreme

13

Court. Pursuant to that appointment I developed a factually based system of proportionality

14

review and prepared for the Court a proportionality review report for the Court. See Death

15

Penalty Proportionality Review Project Final Report to the New Jersey Supreme Court

16

(September 24, 1991) Proportionality Review of Death Sentences: The View of the Special

17

Master, 5 Chance 18-27 (Summer 1993) (with George Woodworth).

18

5.

I have studied and applied statistical methods to a variety of legal settings for

19

more than thirty years. I am the author of Statistical Proof of Discrimination (1980) (with James

20

Cole) and Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990) (with

21

George Woodworth and Charles A. Pulaski Jr.). I have authored numerous research papers on

22

death penalty sentencing, including Quantitative Methods for Judging the Comparative

23

Excessiveness of Death Sentences in The Use/Nonuse/Misuses Of Applied Social Science

24

Research In The Court: Conference Proceedings, 83-94 (Michael Saks and Charles Baron eds.

25

1980); Race Discrimination In America's Capital Punishment System Since Furman v. Georgia

26

(1972): The Evidence Of Race Disparities And The Record Of Our Courts And Legislatures In

27

Addressing The Issue, Report To American Bar Association, Section Of Individual Rights And

28

Responsibilities (July 25, 1997) (with George Woodworth); and Arbitrariness and

Declaration of David C. Baldus

1

Exhibit F
Page 47

1

Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of

2

the Nebraska Experience (1973-1999), 81 Neb. L. Rev. 486 (2002) (with George Woodworth,

3

Catherine Grosso, and Aaron Christ).

4
5

6.

I have qualified as an expert witness and testified in state and federal court

proceedings, including McCleskey v. Kemp, Case No. CIV C81-2434A (N.D. Ga.).
INTRODUCTION

6
7

7.

On November 1, 2009, December 1, 2009, February 18, 2010, and September 15,

8

2010, I executed declarations concerning the findings of an empirical study of 27,453 California

9

homicide cases with a date of offense between January 1, 1978, and June 30, 2002, that resulted

10

in a first- or second-degree murder or voluntary manslaughter conviction. Since the filing of the

11

previous declarations, I have reviewed and classified cases recently provided by the California

12

Department of Corrections and Rehabilitation and cases in which subsequent information has

13

been obtained to permit final decisions. In addition, I have verified the accuracy of my findings

14

with respect to the cases used for my opinions in the previous declarations. This declaration thus

15

reports additional and corrected findings of the study based on a stratified sample of 1,900 cases

16

drawn from the 27,453 case universe.

17

8.

The purpose of the study is two-fold. The first purpose is to evaluate the scope of

18

death eligibility under California law following the decision in Furman v. Georgia, 408 U.S. 238

19

(1972). The second purpose is to evaluate capital charging and sentencing practices in post-

20

Furman California death-eligible cases.

21

9.

With regard to death eligibility in post-Furman California, my colleague

22

Professor George Woodworth and I documented the rates of death eligibility under post-Furman

23

California law among several categories of legally relevant homicide cases. This study also

24

evaluated the death eligibility of each case in the sample under pre-Furman Georgia law. This

25

information enabled us to document the extent to which post-Furman California law has

26

narrowed the rate of death eligibility in homicide cases from the rate of death eligibility that

27

existed under pre-Furman Georgia law. We also compared post-Furman California death-

28

eligibility rates with post-Furman death-eligibility rates in other states. Finally, we compared

Declaration of David C. Baldus

2

Exhibit F
Page 48

1

the narrowing produced by post-Furman California law with the narrowing of death eligibility

2

produced by post-Furman statutes in other states.
10.

3

With regard to the second purpose, Professor Woodworth and I examined the

4

rates at which death-eligible post-Furman California cases are capitally charged and result in a

5

death sentence. In that analysis, we compared post-Furman California death sentencing rates to

6

the death sentencing rates in pre-Furman Georgia death-eligible cases. In addition, we compared

7

post-Furman California capital charging and sentencing rates with comparable rates in other

8

American death sentencing jurisdictions for which comparable data are available.
METHODOLOGY

9
10

The Research Team And Responsibilities
11.

11

The research design and sample for this study were produced by Professor

12

Woodworth, Richard Newell, and me. Richard Newell is an experienced data management

13

specialist with many years of experience managing comparable databases. Professor Woodworth

14

produced the statistical procedures used to estimate death-eligibility narrowing rates and the

15

charging and sentencing outcomes in the universe of cases in this study. Robin Glenn, an

16

experienced lawyer with substantial experience as a supervisor in comparable empirical studies

17

of death penalty systems, and I oversaw the data coding and cleaning process. The coding of the

18

data collection instrument for the cases in the sample was conducted by thirteen University of

19

Iowa law students and eight recent University of Iowa law graduates.1 Professor Woodworth

20

and I produced the substantive statistical findings reported herein. The curriculum vitae of

21

Professor Woodworth, Richard Newell, and Robin Glenn are attached to this declaration as

22

Appendices B-D.

23

The Universe And Sample
12.

24

Because we seek to assess the narrowing effect of California’s post-Furman law

25
26
27
28

1

The Iowa law students are Sadad Ali, Peter D’Angelo, John Magana, Jacob Natwick,
Fangzhou Ping, Thomas Farrens, Folke Simons, Erin Snider, Jason Stoddard, James Vaglio,
Porntiwa Wijitgomen, Fei Yu, and Weiyan Zhang. The recent law graduates are Rebecca
Bowman, Edward Broders, Theresa Dvorak, David Franker, Luke Hannan, Beth Moffett,
Amanda Stahle, and Kristen Stoll.

Declaration of David C. Baldus

3

Exhibit F
Page 49

1

among all willful homicide cases and relevant subgroups of those cases, we define our universe

2

as all defendants convicted of first-degree murder (M1), second-degree murder (M2), and

3

voluntary manslaughter (VM). The basis for defining this universe empirically was a machine

4

readable database maintained by the California Department of Corrections and Rehabilitation

5

(CDCR). This database includes information on 27,453 cases with a date of offense between

6

January 1, 1978, and June 30, 2002, classified by crime of conviction as follows: 32% M1, 29%

7

M2, and 39% VM. For each case, the CDCR database includes information on the date of

8

offense, crime of conviction, county of prosecution, county court case number, CDCR case

9

number, date of conviction, and the gender and age of the defendant.
13.

10

Our 6.9% (1,900/27,453) sample was determined by available time and resources

11

and considerations of statistical validity. Using the CDCR database, we stratified the sample on

12

three dimensions in order to produce a more representative sample of the cases than would have

13

been produced by a random sampling method. The first dimension, the crime of conviction,

14

provides proportionate representation for the M1, M2, and VM conviction cases (three levels).

15

The second dimension is the population density per square mile of the county of prosecution.2

16

We designed this dimension with four levels to obtain a representative sample of smaller and

17

more rural counties. Our goal was 25% of the sample from Los Angeles (which accounts for

18

42% of the cases in the universe), and 25% of the sample from each of the three other groups of

19

counties ranked in terms of population density.3 Third, we stratified the sample on the basis of

20
21
22
23
24
25
26
27
28

2

The data source was County Population Per Square Mile: 2000 - Department of Finance,
California Statistical Abstract, Sec. A, Table A-1 (county land square miles), Sec. B, Table B-3
(county population) (2001).
3

The counties in the four population density levels from low (1) to high (4) density are as
follows. Level 1 has 41 counties with a population density per square mile of fewer than 200
people (Alpine, Amador, Butte, Calaveras, Colusa, Del Norte, El Dorado, Fresno, Glenn,
Humboldt, Imperial, Inyo, Kern, Kings, Lake, Lassen, Madera, Mariposa, Mendocino, Merced,
Modoc, Mono, Monterey, Napa, Nevada, Placer, Plumas, San Benito, San Bernardino, San Luis
Obispo, Santa Barbara, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Tulare, Tuolumne,
Yolo, and Yuba). Level 2 has nine counties with a population per square mile larger than 200
and smaller than 700 (Marin, Riverside, San Diego, San Joaquin, Santa Cruz, Solano, Sonoma,
Stanislaus, and Ventura). Level 3 has seven counties with a population per square mile between
700 and 3400 people (Alameda, Contra Costa, Orange, Sacramento, San Francisco, San Mateo,
and Santa Clara). Level 4 is Los Angeles.

Declaration of David C. Baldus

4

Exhibit F
Page 50

1

four time periods that would enable us to over-represent in the sample cases from the Carlos

2

Window,4 during which time Jerry Frye and Troy Ashmus were sentenced to death (four levels).5

3

Our goal was a sample with 57% of the cases from this time period.
14.

4

Based on the information we gathered for each case in the universe, we developed

5

a stratified random sample of cases consisting of 48 strata.6 Within each stratum, we identified

6

the sequence in which we would request case information from the state.7 For each stratum, we

7

weighted the cases in the sample on the basis of the ratio of the number of cases in the universe

8

and the sample. For example, if a stratum contained 100 cases in the universe and 20 cases in

9

the sample, the weight for each case in the sample from that stratum would be 5.0 (100/20).

10

Sources Of Data For The Individual Homicide Cases In The Sample
15.

11

Our primary source of information on each case was the probation report prepared

12

by the county probation officer with jurisdiction over the case. California law calls for the

13

preparation of a probation report in each homicide regardless of the crime of conviction and

14

sentence. The purpose of the report is to justify the probation officer’s recommendation on the

15

appropriateness of probation as a sentencing alternative in the case.
16.

16
17

One limitation of the probation reports is that they are often prepared pre-trial so

that the ultimate crime of conviction may not be noted in the report. When that occurred, we

18
19
20
21
22
23
24
25
26
27
28

4

The Carlos Window refers to the time period that was governed by the California
Supreme Court’s decision in Carlos v. Superior Court, 35 Cal. 3d 131 (1983). In Carlos,
decided on December 12, 1983, the California Supreme Court held that the robbery felonymurder special circumstance (Cal. Penal Code. § 190.2(a)(17)(i)) required the state to prove that
the defendant had the intent to kill or to aid in a killing. In People v. Anderson, 43 Cal. 3d 1104
(1987), decided on October 13, 1987, the California Supreme Court overruled Carlos, holding
that intent to kill is not required to find a felony-murder special circumstance for a person who is
the actual killer. Thus, “Carlos applies only to murder committed between December 12, 1983,
the date on which Carlos was decided, and October 13, 1987, the date on which it was
overruled.” People v. Musselwhite, 17 Cal. 4th 1216, 1265 (1998) (citations omitted).

5

The four time periods are: a. (01/01/78 – 12/11/83), b. (12/12/83 – 10/13/87) (the Carlos
Window), c. (10/14/87 – 12/31/92), and d. (01/01/93 – 6/30/02).
6
The stratum count is the product of 3 (offense categories) x 4 (county population density
categories) x 4 (time periods) = 48 strata.
7
The state was directed by the federal district courts in Mr. Frye’s and Mr. Ashmus’s
habeas corpus proceedings to produce (1) the database used to construct the stratified random
sample, and (2) probation reports for the cases that we identified as part of the sample.

Declaration of David C. Baldus

5

Exhibit F
Page 51

1

consulted the crime of conviction reported in the CDCR database. On other occasions, the

2

probation report contained insufficient “procedural” information because it failed to report the

3

crime charged and/or the basis of the conviction (by guilt trial verdict or guilty plea), information

4

that may be essential to assess the death eligibility of a case.8 A number of probation reports

5

also included insufficient “substantive” information about the facts of the crime to support a

6

valid assessment of its death eligibility. Missing procedural or substantive information occurred

7

in 16% of the cases for which we received a probation report from the state.
17.

8

When either of these information insufficiency situations occurred, we

9

provisionally removed the case from the sample and sought a cure for the insufficiency by

10

requesting counsel from the California Habeas Corpus Resource Center (HCRC) to consult the

11

trial and appellate court records in the case and report the missing information if it was

12

available.9 When the HCRC was able to provide us with documents containing the information

13

needed about a case, it was coded accordingly and the case was returned to the active sample of

14

cases.
18.

15

As noted above, the state’s obligation to provide probation reports was defined by

16

court orders.10 There were substantial delays in the state’s production of these reports, which has

17

delayed our review and coding of the homicide cases. On October 9, 2009, counsel for Mr. Frye

18

requested from the state replacement probation reports for the information insufficient cases that

19

the HCRC staff had been unable to cure as of that time. As of the submission of this amended

20
21
22
23
24
25
26
27
28

8

For example, when a defendant is charged with California Penal Code section 187
murder generally and is convicted of M2, a coder needs to know if the basis of the decision was a
guilt trial conviction or a guilty plea in order to apply our controlling fact finding rule of
interpretation (CFF). If it were a guilt trial decision the CFF rule would authoritatively classify
the case as factually M2 and not death eligible. However, if the conviction was based on a guilty
plea, the prosecutor’s decision to accept that plea would not foreclose a coder’s classification of
factual M1 liability and the factual presence of a special circumstance because a prosecutor’s
decision to accept a plea bargain is not a controlling finding of fact. See infra para. 25-26 for a
discussion of the controlling fact finding rule and the role that procedural information plays in its
application.
9
The HCRC cured the insufficiency in 106 cases, thus reducing the percentage of cases
with missing information to 11%.
10
Note 7, supra, describes the basis of the state’s obligation to provide us with probation
reports for use in the conduct of this study.

Declaration of David C. Baldus

6

Exhibit F
Page 52

1

declaration, we have received some of the requested probation reports.
19.

2

The probation reports are also limited in the information they can provide because

3

some of the requested reports were not produced by the state or contained no usable information.

4

The specific reasons for these shortfalls are listed in the note below.11 When we encountered

5

these situations, we requested a probation report for a substitute case that was selected in random

6

order from the sampling lists.12

7

The Coding Process For Individual Cases

8

The data collection instrument

9

20.

Each case was coded into the data collection instrument (DCI) attached to this

10

declaration as Appendix E. A “thumbnail” sketch of each case was created during the coding

11

process, which enhanced the process of reviewing the original coding decisions. The coders and

12

data cleaners also had the probation reports available. The information in the probation reports

13

provided the basis for all of the final coding decisions in this project unless an information

14

insufficiency was present and we obtained additional information from the HCRC. We also

15

consulted appellate judicial opinions when applicable.
21.

16

The DCI consists of four substantive sections following a three-part introduction.

17

Part IV documents charging and sentencing decisions in the case under the post-Furman law

18

applicable on the date of the offense. If the case was capitally charged, this part of the DCI

19

documents any special circumstances alleged, found, or rejected. It also documents sentencing

20

outcomes reported in the probation report.

21
22
23
24
25
26
27
28

11

1. The probation report produced by the state was not a homicide conviction. 2. The
probation report produced by the state reported the facts of a conviction for involuntary
manslaughter or less. 3. The probation report relates to the defendant named in the sample but
the crime of the defendant reported in the report is not in the sample. 4. The requested probation
report was not produced by the state or it is unusable because it was substantially incomplete. 5.
The probation report produced by the state was illegible or unusable because of incomplete or
missing pages.
12
The information insufficiency problem in these situations differs from the shortfall of
procedural and substantive information discussed in para. 16, supra, in that we either had no
probation report at all for the case in the sample or the severity of the missing information
problem (e.g., illegible) was beyond the capacity of the HCRC to cure with its supplemental
information sources.

Declaration of David C. Baldus

7

Exhibit F
Page 53

22.

1

The balance of the DCI focuses on assessments of the death eligibility of the case

2

under (a) pre-Furman Georgia law, and (b) post-Furman Carlos Window California law and

3

2008 California law.13
23.

4

The coding protocol.

The HCRC provided a detailed summary of the law

5

concerning the elements of murder liability under pre-Furman Georgia law and M1 liability and

6

special circumstances under post-Furman California law. When legal issues arose under the

7

terms of the coding protocol, Ms. Glenn and I certified legal questions to HCRC counsel to

8

which they would reply in writing. These memoranda were then added to the coding protocol.
24.

9

The standards used to identify factual M1 status in the cases and the factual

10

presence of special circumstances in the cases.

11

interpretation in this research to assess the factual death eligibility of each case.
25.

12

We applied two core principles of

The controlling fact finding rule. The first principle is the “controlling fact

13

finding” rule (CFF).

Its purpose is to narrowly limit the coders’ discretion to override

14

authoritative fact findings of juries and judges in particular cases.14 The rule holds first that if an

15

authoritative fact finder (judge or jury) with responsibility for finding a defendant liable for M1

16

convicts the defendant of less than M1 (i.e., M2 or VM), that finding is considered to be a CFF

17

and the coder will code the case at the reduced level of homicidal liability in the absence of

18

overwhelming evidence of jury nullification. The rule also holds that an authoritative fact

19

finding of M1 liability or a M1 guilty plea is a CFF, and the case will be coded at that level of

20

liability. The same rule applies with respect to allegations and findings of the presence or

21

absence of special circumstances in the case and defendant admissions of their presence.

22
13

23
24
25
26
27
28

Part V of the DCI focuses on the factual presence of special circumstances in M1
conviction cases that were not capitally charged. Part VI of the DCI focuses on the factual
presence of M1 liability and special circumstances in the case in the absence of a fact finder’s
M2 or VM decision that would foreclose a determination that the case is factually M1 under the
controlling fact finding rule described in paragraph 25 below. Part VII summarizes the coder’s
judgments of the death eligibility of the case under each of the three legal regimes.
14
David Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Catherine M.
Grosso, Empirical Studies of Race and Geographic Discrimination in the Administration of the
Death Penalty: A Primer on the Key Methodological Issues in The Future of America’s Death
Penalty An Agenda For the Next Generation of Capital Punishment Research 153, 164-65 (C.
Lanier, W. Bowers, and J. Acker eds., 2009) (explaining the rationale of the CFF rule).

Declaration of David C. Baldus

8

Exhibit F
Page 54

26.

1

In this research, prosecutors are not viewed as controlling fact finders in the same

2

way as jurors and judges in guilt trials. For this reason, the CFF does not apply when a

3

defendant is charged with less than M1 or when a M1 charge is reduced by the prosecutor to a

4

lesser charge. The CFF rule also does not apply when the prosecutor does not allege a special

5

circumstance that is factually present in the case or when a special circumstance is alleged but

6

withdrawn by the prosecutor before trial. When any of these situations occurs, a prosecutorial

7

decision not to charge M1 or a special circumstance or a prosecutorial decision to withdraw a M1

8

charge or a special circumstance allegation does not limit a coder’s discretion to find factual M1

9

liability or a special circumstance if either or both is factually present in the case. The same rule

10

applies when a prosecutor reduces the charge or withdraws a special circumstance.
27.

11

The legal sufficiency rule. The second core principle of interpretation applies

12

when the factual M1 status of a case or the presence or absence of a special circumstance in the

13

case is not determined by a CFF. In these situations, the issue is not what the coder believes

14

would be the “correct” factual determination given the conflicting evidence in the case. Nor is

15

the test a coder’s assessment of how a reasonable juror would decide the factual issues in the

16

case.

17

28.

Rather the test, known as the “legal sufficiency” standard, is whether a California

18

appellate court would affirm a jury M1 conviction in the case or a jury’s finding of the presence

19

of a special circumstance in the case if a jury had made either of those findings and the finding

20

was challenged on appeal for a lack of sufficient evidence. In our application of this principle,

21

exculpatory evidence offered by the defendant (as reported in the probation report) is given no

22

weight, but incriminating evidence offered by the defendant is credited.

23

29.

In their application of the legal sufficiency test, coders relied on three forms of

24

authority to support their judgments that the facts in a case did or did not satisfy the “legal

25

sufficiency” test. The strongest level of authority was a factually comparable case in which a

26

jury or trial court’s M1 or special circumstance finding of fact was sustained or reversed by a

27

California appellate court when challenged with a claim of evidentiary insufficiency.

28

second level of authority was a factually comparable case in this study in which a fact finder

Declaration of David C. Baldus

9

Exhibit F
Page 55

The

1

returned a finding of fact on M1 liability or the presence of a special circumstance that was not

2

disturbed on appeal. The third level of authority was the coding protocol described in paragraph

3

23 above.
30.

4

Exceptions to the CFF rule. A CFF may not apply when the relevant law to be

5

applied to a case was different under Carlos Window California law than it was under 2008

6

California law or vice versa. For example, assume that in a case involving a drive-by shooting,

7

which implicates the special circumstance contained in California Penal Code section

8

190.2(a)(21),15 a jury applying 2008 law found the special circumstance present. This CFF

9

decision would control the coder’s discretion in her coding of the case under 2008 law.

10

However, because that special circumstance was not extant during the Carlos Window, the jury’s

11

section 190.2(a)(21) decision under 2008 law would not control the coder’s classification under

12

Carlos Window law. Similarly, if under Carlos Window law, a jury rejected a robbery special

13

circumstance (section 190.2(a)(17)(A)) for lack of proof of intent to kill, which was required

14

under Carlos Window law for all defendants, that decision would not affect the coder’s

15

classification of the robbery special circumstance case under 2008 law, which does not require

16

proof of intent to kill to establish it as to actual killers.16
31.

17

A “jury nullification” exception to the controlling fact finding rule arises when a

18

general California Penal Code section 187 or M1 charge results in a M2 or VM jury or bench

19

conviction and the evidence of M1 liability is “overwhelming.”17 The same rule applies to a

20

special circumstance rejected by a fact finder18 in the face of overwhelming evidence that the

21
22

15

Unless otherwise identified, all further statutory references are to the California Penal

Code.
23
24
25
26
27

16

A related issue arises when there are no relevant fact findings in the case and the
applicable law differs between Carlos Window law and 2008 law. Consider, for example, a
drive-by shooting case prosecuted under 2008 law in which the special circumstance contained
in section 190.2(a)(21) was not alleged and the prosecutor accepted a M2 guilty plea. In that
situation, the coder could find both M1 liability and the drive-by shooting special circumstance
factually present under 2008 law but not under Carlos Window law because the SC21 special
circumstance was not extant under Carlos Window law.
17
The DCI code for this situation is Question (Q) 62 = 2.
18

28

In addition, when all of the special circumstances alleged in a M1 liability case are
rejected by a fact finder, the case may be classified as factually death eligible if another special

Declaration of David C. Baldus

10

Exhibit F
Page 56

1

special circumstance is present in the case.
32.

2

Measuring death eligibility in individual cases.

We measured the death

3

eligibility of each case under three legal regimes – pre-Furman Georgia law, Carlos Window

4

California law, and 2008 California law. Each of these bottom-line variables is coded “1” for

5

clearly present, “0” for clearly not present, and “2” for a close call. Close call classifications

6

arise when a M1 liability or special circumstance classification is not determined by a controlling

7

finding of fact and the circumstances of the offense are sufficiently well understood to support

8

coding. A close call relates to the legal issue of whether the facts in the cases satisfy the legal

9

sufficiency test.19 As noted above,20 that test poses the question of whether, on the facts of the

10

case, an appellate court would sustain a jury verdict finding M1 liability and a special

11

circumstance present in the case. As noted above, there are three forms of authority on this

12

issue.21 When we were uncertain how an appellate court would rule on a finding of the presence

13

of M1 liability or a special circumstance in the case, we coded it a close call.
33.

14

These distinctions produced two measures of death eligibility – a conservative

15

measure that limited death eligibility to “clearly present” classifications and a liberal measure

16

that classified a case as death eligible if that status was clearly present or a close call. In the

17

presentation of our findings, we note these distinctions and report both the conservative and

18

liberal estimates.

19

34.

Measuring the comparative expansion and narrowing of death-eligibility

20

rates between different legal regimes.

An important purpose of this project involves

21

comparisons of death-eligibility rates among different jurisdictions and within individual

22

jurisdictions under different legal regimes. We made the following comparisons of death-

23

eligibility rates:
a. within California (a) Pre-Furman versus Carlos Window and 2008

24
25
26

circumstance not alleged by the state is factually present in the case.
19

See supra para. 27-29.

27

20

See supra para. 28.

28

21

See supra para. 29.

Declaration of David C. Baldus

11

Exhibit F
Page 57

rates, and (b) Carlos Window versus 2008 rates, and

1

b. among states, e.g., California Carlos Window and 2008 rates versus the
rates in all other death penalty states.

2
3

35.

In these analyses we focus on the comparative “expansion” and “narrowing” of

4

death-eligibility rates between and within these jurisdictions. For this purpose, we measure

5

expansion and narrowing effects in two ways. The first is the arithmetic difference between two

6

death-eligibility rates, e.g., a 20% rate of death-eligibility pre-Furman versus a 10% post-

7

Furman rate represents a 10-percentage point “absolute” disparity in the two rates. The second

8

measure is the “percentage” of expansion or narrowing of death eligibility between the two

9

groups, which we characterize as expansion and narrowing rates. For example, if within a

10

jurisdiction, the pre-Furman death-eligibility rate was 30% compared to a 20% rate in the post-

11

Furman period, the absolute difference in the two rates would be 10 percentage points (30%-

12

20%). The proportionate narrowing rate, would be 33% (10%/30%) – the 10-percentage point

13

absolute disparity in the two rates divided by the pre-Furman rate of 30%. Similarly if the death-

14

eligibility rate expanded under two different legal regimes, say from 20% to 30%, the rate of

15

expansion would be 50% (the 10-percentage point difference between the two legal regimes

16

divided by the 20% rate for the first legal regime). If the rate rose from 20% to 50% the

17

expansion rate would be 150% (the 30-percentage point disparity divided by the 20% rate for the

18

first legal regime).

19

36.

The precision of our estimates of rates and the expansion and narrowing of those

20

rates is expressed in terms of a “95% confidence interval” around the estimated death-eligibility

21

rate or the estimated expansion or narrowing rate, as the case may be. For example, for the 33%

22

percent narrowing rate noted above, the 95% confidence interval will depend on the size of the

23

sample of cases on which the estimate is based. A 95% confidence interval of 30% to 36% for a

24

33% narrowing rate provides us a 95% level of confidence that the narrowing rate in the universe

25

of cases implicated in the analysis is between 30% and 36%.

26
27
28

DEATH-ELIGIBILITY RATES IN CALIFORNIA AND OTHER STATES
California Death-Eligibility Rates Under Carlos Window And 2008 California Law
37.

This section presents rates of death eligibility in post-Furman California cases

Declaration of David C. Baldus

12

Exhibit F
Page 58

1

under Carlos Window and 2008 California law. Table 1 presents death-eligibility rates for all

2

cases and broken down by the crime of conviction. Part I, Column B, Row 4 indicates that the

3

rate of death eligibility for all cases under Carlos Window law was 55%, while the comparable

4

rate under 2008 law in Column D is 59%, which represents a 7% (4/55) rate of expansion.22 This

5

expansion under 2008 law is principally explained by the large number of cases in the system

6

that implicate the drive-by shooting (section 190.2(a)(21)) and street gang murder (section

7

190.2(a)(22)) special circumstances, which were adopted after the Carlos Window.23
38.

8

Part I of Table 1 also breaks down the death-eligibility rates by the crime of

9

conviction in Rows 1-3. Row 1 documents for the M1 conviction cases a 91% rate under Carlos

10

Window law in Column B and a 95% rate under 2008 law in Column D, which represents a 4%

11

(4/91) expansion of death eligibility. The death-eligibility rates reported in Rows 2 and 3 are

12

lower for M2 and VM conviction cases. For the M2 cases, the documented rates in Row 2 of

13

Part I are 33% under Carlos Window law and 38% under 2008 law, which represents a 15%

14

(5/33) death-eligibility expansion under 2008 law.

15

documented in Row 3 are 41% under Carlos Window law and 46% under 2008 law, which

16

represents a 12% (5/41) expansion.
39.

17

For the VM cases the respective rates

Of particular interest are death-eligibility rates among cases that are factually M1,

18

as distinguished from the smaller number of cases that resulted in M1 convictions.24 Part II of

19

Table 1 documents those results. It reports an 80% rate for cases that are factually M1 under

20

Carlos Window law (Row 1) and an 86% rate for cases that are factually M1 under 2008 law

21

(Row 2), which represents a 7.5% (6/80) expansion of the rate under 2008 law.

22

Comparisons of Death Eligibility Rates Under Post-Furman California Law and PreFurman Georgia Law

23

40.

24
25

In this section and in Table 2 we compare the rate of death eligibility of the post-

22

26

These rates are based on our conservative death-eligibility estimates. The rates based on
the liberal estimates are reported in a footnote in Table 1.
23
March 27, 1996, and March 8, 2000, respectively.

27

24

28

Part I, Column B, Row 1 documents the death-eligibility rate in 8,711 M1 convictions
while Part II, Rows 1 and 2 document death-eligibility rates among almost 19,000 factual M1
cases.

Declaration of David C. Baldus

13

Exhibit F
Page 59

Exhibit F
Page 60

55% (15,013/27,453)

4. All Cases

E
95% Confidence
Interval for Col. D
Estimate
92%, 97%
32%, 45%
41%, 52%
56%, 62%

C
95% Confidence Interval for Col. B
Estimate
77%, 83%

59% (16,298/27,453)

95% (8,238/8,711)
38% (3,022/7,900)
46% (5,038/10,842)

D
2008 Law

86% (16,298/18,982)

80% (15,013/18,737)

83%, 89%

B
Death-Eligibility Rate

C
95% Confidence
Interval for Col. B
Estimate
88%, 94%
27%, 40%
35%, 47%
52%, 58%

When death-eligibility rates are estimated with our liberal measure of death eligibility, the Column B and D rates for Rows 1 - 4 are: Row 1 – 91% and 95%;
Row 2 –34% and 38%; Row 3 -- 42% and 47%, and Row 4 -- 55% and 60%.
2
When the death-eligibility rates are estimated with our liberal measure of death eligibility, the Column B estimates are 81% for Row 1 and 86% for Row 2.

1

1. Percentage of factual M1 cases under Carlos Window
law that are death eligible under Carlos Window law
2. Percentage of factual M1 cases under 2008 law that are
death eligible under 2008 law
_______________________

A

Part II. Death-Eligibility Rates Among Factual M1 Cases2

91% (7,918/8,711)
33% (2,642/7,900)
41% (4,453/10,842)

B
Carlos Window
Law

1. First-Degree Murder (M1)
2. Second- Degree Murder (M2)
3. Voluntary Manslaughter (VM)

A
Crime of Conviction

Part I: Death-Eligibility Rates by Crime of Conviction1

DEATH-ELIGIBILITY RATES BY CRIME OF CONVICTION (PART I) AND AMONG ALL FACTUAL FIRST-DEGREE MURDERS (PART II) UNDER
CALIFORNIA CARLOS WINDOW AND 2008 LAW: 1978-2002

TABLE 1

1

Furman California cases under post-Furman California law with their rate of death eligibility

2

under pre-Furman Georgia law. Part I of Table 2 presents the narrowing rates under Carlos

3

Window California law, first for all cases and then broken down by the crime of conviction. Part

4

I, Column A, Row 4 presents the results for all cases in the sample, while Rows 1-3 report

5

separate results for M1, M2, and VM convictions.
41.

6

Part I, Column E, Row 4 of Table 2 reports a 40% narrowing rate under Carlos

7

Window California law for all cases. When the focus shifts to the three different crimes of

8

conviction, Column E reports respective narrowing rates of 9% for the M1 cases, 67% for the

9

M2 cases, and 47% for the VM cases.25
42.

10

Part II reports similar findings under 2008 law. Column E reports narrowing rates

11

of 5% for the M1 cases and 62% and 40% respectively, for the M2 and VM cases. The overall

12

narrowing rate reported in Row 4 for all cases under 2008 law in Column E is 35%.26

13

Post-Furman Death Eligibility and Death-Eligibility Narrowing Rates in Other States
43.

14

Rates of death eligibility under the capital punishment laws in other states

15

reported in Table 3 shed important light on the breadth of California’s post-Furman statute. Part

16

I of the Table first presents death-eligibility rates in two states, New Jersey and Maryland, where

17

death eligibility is principally defined by the Model Penal Code’s aggravating circumstances that

18

have been commonly used in American death sentencing jurisdictions. For both New Jersey and

19

Maryland, we have empirical assessments of death-eligibility rates for first- and second-degree

20

murder convictions. The methodology used to make those assessments in New Jersey27 and

21
22
23
24
25
26
27
28

25

Column E of Parts I and II of Table 2 report the narrowing rates estimated with our
conservative death-eligibility measure. Note 1 of Table 2 reports that the narrowing rates based
on our liberal death-eligibility measure for Part I, Column E are as follows: Row 1 – 9%; Row 2
– 66%; Row 3 – 46%; and Row 4 – 40%.

26

Note 2 of Table 2 reports that the death-eligibility narrowing rates based on our liberal
death-eligibility measure for Part II of Table 2 Column E are as follows: Row 1 – 5%; Row 2 –
62%; Row 3 – 39%; and Row 4 – 35%.
27
When I was the New Jersey Supreme Court’s Special Master for Proportionality Review
(1988-1991), Professor Woodworth and I with substantial assistance from the staff of the New
Jersey Supreme Court conducted an empirical study of the operation of the New Jersey death
penalty system from 1983 through 1991 based on the methodology of our Georgia research.
The staff of the court screened probation reports for death eligibility under my
Declaration of David C. Baldus

14

Exhibit F
Page 61

Exhibit F
Page 62

91%

46%

77%
91%

4. All Cases (n = 27,453)

32 pts.

31 pts.

61 pts.

5 pts.

D
Absolute Disparity
(Col. B – Col. C)

36 pts.

36 pts.

66 pts.

9 pts.

D
Absolute Disparity
(Col. B – Col. C)

35%

40%

62%

5%

E
Narrowing Rate
(Col. D/Col. B)

40%

47%

67%

9%

E
Narrowing Rate
(Col. D/Col. B)

31%, 38%

33%, 46%

55%, 68%

3%, 8%

F
95% Confidence
Interval for
Col E. Estimate

36%, 43%

40%, 53%

60%, 73%

6%, 12%

F
95% Confidence
Interval for
Col E. Estimate

When the narrowing rates are based on our liberal measure of death eligibility, the narrowing rates in Column E are as follows: Row 1 – 9%; Row 2 – 66%;
Row 3 – 46%, and Row 4 – 40%.
2
When the narrowing rates are based on our liberal measure of death eligibility, the narrowing rates in Column E are as follows: Row 1 – 5%; Row 2 –62%;
Row 3 – 39% and Row 4 – 35%.

1

59%

38%

99%

________________________________ 

95%

C
2008 Law DeathEligibility Rate

100%

B
Pre-Furman (PF)
Death-Eligibility
Rate

55%

41%

77%
91%

33%

99%

l. First-Degree Murder
(M1) (n = 8,711)
2. Second-Degree Murder
(M2) (n = 7,900 )
3. Voluntary Manslaughter
(VM) (n = 10,842)

A
Crime of Conviction

C
Carlos Window
(CW) DeathEligibility Rate

100%

B
Pre-Furman (PF)
Death-Eligibility
Rate

Part II: CALIFORNIA LAW -- JANUARY 1, 20082

4. All Cases (n = 27,453)

l. First-Degree Murder
(M1) (n = 8,711)
2. Second-Degree Murder
(M2) (n = 7,900)
3. Voluntary Manslaughter
(VM) (n = 10,842)

A
Crime of Conviction

Part I: CARLOS WINDOW (CW) LAW1

TABLE 2
FACTUAL DEATH-ELIGIBILITY NARROWING AMONG CALIFORNIA POST-FURMAN M1, M2, AND VM CONVICTION CASES UNDER
POST-FURMAN CALIFORNIA LAW COMPARED TO PRE-FURMAN GEORGIA LAW, BROKEN DOWN BY
CRIME OF CONVICTION: 1978 - 2002

1

Maryland28 is similar to the methodology that we used for the California project.
44.

2

Column A, Part I of Table 3 identifies the three comparison states while Column

3

B lists the death-eligibility rates for each. Rows 1 and 2 of Column B indicate that the post-

4

Furman death-eligibility rates for New Jersey and Maryland are identical at 21%. In contrast,

5

Row 3a of Column B reports California death-eligibility rates of 64% under Carlos Window

6

California law, which is 3.0 (64%/21%) times higher than the New Jersey and Maryland rates,

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

supervision. My final report to the court, Death Penalty Proportionality Review Project: Final
Report To The New Jersey Supreme Court 3-10 (September 24, 1991) [N.J. Rpt.] explains that
the screening occurred in two steps. The first threshold screen excluded as clearly not death
eligible juveniles, death by auto, acquittal in a murder trial and also non-penalty trial homicides
that resulted in indictments for less than some form of murder or a conviction less serious than
aggravated manslaughter. Id. at 2-4. Cases that resulted in simple manslaughter convictions
(called passion-provocation or reckless manslaughter in New Jersey and voluntary or involuntary
manslaughter elsewhere) were also excluded. The 1496 cases that survived this initial screen
were “(a) pleas to murder [M1 or M2] felony murder, or aggravated manslaughter when the
original charge was a form of murder, (b) jury convictions for murder and for felony murder
when the indictment was for felony murder, and (c) capital murder convictions.” This
population of New Jersey cases is directly comparable to the M1 and M2 California conviction
cases screened for death eligibility in our California research. With an enhanced database, the
New Jersey proportionality review project subjected these cases to further analysis to assess their
death eligibility. The test for “clear” death eligibility was whether the evidence was
“overwhelming or strong.” Id. at 8. The analysis determined that 16% (246/1496) of the cases
screened were “clearly death eligible.” Id. at 10.
I was succeeded by two special masters until New Jersey repealed capital punishment in
2007. The last special master, Judge David Baime, reported in 1999 that the court staff
continued to follow the screening process established in 1988. David Baime, Report of the
Special Master to the New Jersey Supreme Court 28 (April 28, 1999). He reports that as of early
1999, of “the 2104 cases that have been screened since the beginning of the proportionality
review process, only 433 homicides have been classified as clearly death-eligible, approximately
twenty-one percent.” This represents a post-Furman death-eligibility rate among M1 and M2
convictions of 21% (433/2104) over 15 years. See also Proportionality Review Project 735 A.2d
528, 536 (N.J. 1999) (explaining and quoting from Judge Baime’s 1999 report). In our
discussion of death-eligibility rates in this report, we use the 21% rate for New Jersey between
1983 and 1999 reported by Judge Baime in 1999 because it is based on a larger sample than the
16% estimate reported by me for the 1983-1991 period.
28

Professor Raymond Paternoster conducted a McCleskey-style study of death sentencing
in Maryland between 1978 and 1999. Raymond Paternoster, Robert Brame, Sarah Bacon &
Andrew Ditchfield, Justice by Geography and Race: The Administration of the Death Penalty in
Maryland,1978-1999, 4 MARGINS: Maryland’s L. J. On Race, Religion, Gender, and Class 1
(2004) [Maryland]. To obtain a data base of “death eligible” cases his research assistants
screened “approximately 6000” first- and second-degree homicide convictions based on a
substantial file of information maintained for each prisoner in the department of corrections. Id.
at 15. Professor Paternoster provided me with the more precise number of cases screened that is
reported in Table 2. They used the same screening procedures that we used in New Jersey and
California.

Declaration of David C. Baldus

15

Exhibit F
Page 63

TABLE 3
POST-FURMAN DEATH-ELIGIBILITY RATES IN OTHER STATES COMPARED TO DEATH-ELIGIBILITY
RATES IN POST-FURMAN CALIFORNIA: 1978-2002

Part I: Death-Eligibility Rates in Maryland, New Jersey, and California among M1 and M2
Conviction Cases
A
State
1. New Jersey (1982-1999)1
2. Maryland (1978-1999)2
3. California (1978-2002)
a. Carlos Window Law
b. 2008 Law

B
Death-Eligibility Rate3

21% (433/2,104)
21% (1,311/6,150)
64% (10,560/16,611)
68% (11,260/16,611)

C
95% Confidence Interval
for Death-Eligibility Rate
in Col. B.
NA4
NA4
60%, 67%
64%, 71%

1

David Baime, Report of the the New Jersey Supreme Court Proportionality Review Project 28 (April 28, 1999).
Raymond Paternoster et al., Justice by Geography and Race: The Administration of the Death Penalty in Maryland,
1978-1999, 4 U. of Md. L.J. Race, Religion, Gender & Class (MARGINS) 1, 18 (2004).
3
When the death-eligibility rates reported in Row 3 are estimated with our liberal measures of death eligibility, the rate in
Column B, Row 3.a is 63% and the rate in 3.b is 68%.
4
Not applicable (NA) because the rate reported in Column B is based on the universe of M1 or M2 convictions in the
state.
2

Part II: Death-Eligibility Rates in Nebraska and California among M1, M2, and VM Conviction
Cases
A
State
1. Nebraska (1973-1999)1
2. California (1978-2002)
a. Carlos Window Law
b. 2008 Law

B
Death-Eligibility Rate2

25% (175/689)
55% (15,013/27,453)
59% (16,298/27,453)

1

C
95% Confidence Interval
for Death-Eligibility Rate
in Col. B.
NA3
(52%, 58%)
(56%, 62%)

David C. Baldus, George Woodworth, Catherine M. Grosso, & Aaron M. Christ, Arbitrariness and Discrimination in the
Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999), 81 Neb.
L. Rev. 486, 542 (2002).
2
When the death-eligibility rates reported in Row 2 are estimated with our liberal measure of death eligibility, the rate in
Column B, Row 2.a is 55% and the rate in 2.b. is 60%.
3
Not applicable (NA) because the rate reported in Column B is based on the universe of M1, M2, and VM convictions in
the state.

Exhibit F
Page 64

Part III: Death-Eligibility Rates for California, Nationwide, New Jersey, Maryland, and Nebraska
Based on the Percent of Death-Eligible Homicides Among All Homicides Reported in the
FBI Supplemental Homicide Reports (SHR) (1978-2003)1

A
State

1.
2.
3.
4.
5.

California
Nationwide2
New Jersey
Maryland
Nebraska

B
Death-Eligibility Rate

37.8%
23.8%

C
95% Confidence Interval
for Death Eligibility Rate in
Col. B.
(36%, 40%)
(23.0%, 24.6%)

25.5%
21.9%
28.9%

(24%, 27%)
(20%, 23%)
(25%, 32%)

____________________________
1

Jeffrey Fagan, Franklin E. Zimring & Amanda Geller, Capital Punishment and Capital Murder: Market Share and the
Deterrent Effects of the Death Penalty, 84 Tex. L. Rev. 1803, 1819 (2006). These findings are based on FBI,
Supplemental Homicide Report (SHR) data, which documents all murder and non-negligent manslaughter reported to
the FBI by state law enforcement officials. Professor Fagan and his colleagues generously shared their unpublished state
by state findings for use in this declaration.
2
Id. at 1819. The nationwide rates range from 37.8% (California) to 13.1% (Alabama). See infra Table 4, Part II.

Exhibit F
Page 65

1

and 68% under 2008 California law, which is 3.2 (68%/21%) times higher than the New Jersey

2

and Maryland rates. Expressed in terms of expansion rates, the Carlos Window California law

3

rate represents a 205% (43/21) expansion over the New Jersey and Maryland rates, while the

4

68% death-eligibility rate under 2008 California law represents a 224% (47/21) expansion over

5

the New Jersey and Maryland rates.
45.

6

The New Jersey and Maryland post-Furman death-eligibility rates can also be

7

usefully compared with California in terms of their rates of death eligibility under pre-Furman

8

law. Under New Jersey and Maryland pre-Furman law, all first-degree murder was death

9

eligible.29 The breadth of death eligibility in these states was greatly narrowed with post-

10

Furman legislative requirements of one or more aggravating circumstances in M1 cases and the

11

additional New Jersey legislative requirement limiting death eligibility to actual killers.30

12

However, we cannot empirically quantify the rate of death eligibility of New Jersey’s and

13

Maryland’s post-Furman cases under its pre-Furman statutes.
46.

14

What we can determine with considerable certainty, however, is the rate of death

15

eligibility of Maryland’s and New Jersey’s first and second degree post-Furman murder cases

16

under pre-Furman Georgia law. That law classified common law murder as death-eligible

17

murder, a classification that, with rare exceptions, would have embraced all M1 and M2

18

convictions under post-Furman Maryland and New Jersey law. It is fair to say that close to

19

100% of Maryland and New Jersey’s post-Furman M1 and M2 conviction cases would have

20

been death eligible under pre-Furman Georgia law.31
47.

21

A conservative estimate, therefore, would put the rate of death eligibility of the

22
23
24
25

29

See Edward Devine, Marc Feldman, Lisa Giles-Klein, Cheryl A. Ingram, & Robert F.
Williams, Special Project: The Constitutionality of the Death Penalty in New Jersey, 15 Rutgers
L. J. 261, 270, 274 (1984); Roann Nichols, Tichnell v. State – Maryland’s Death Penalty: The
Need For Reform, 42 Md. L. Rev. 875 (1983).
30

26
27
28

State v. Bobby Lee Brown, 138 N.J. 481, 509 (1994) (examining the history of New
Jersey’s “own conduct” requirement).
31
This is exactly what we see in California. Table 2, Parts I and II, Column B document
pre-Furman death-eligibility rates of 100% for M1 and 99% for M2 California convictions in our
sample.

Declaration of David C. Baldus

16

Exhibit F
Page 66

1

post-Furman Maryland and New Jersey cases under pre-Furman Georgia law at 95%. The 21%

2

rate of post-Furman death eligibility in these two states suggests conservatively a 78% (74/95)

3

narrowing of death eligibility compared to their death-eligibility status under pre-Furman

4

Georgia law. The comparable California narrowing rate among M1 and M2 cases as a group is

5

36% under Carlos Window law and 32% under 2008 law,32 which are respectively 54% (42/78)

6

and 59% (46/78) lower narrowing rates than the New Jersey and Maryland rates.
48.

7

Part II of Table 3 explores a post-Furman comparison between Nebraska (1973 -

8

1999) and California (1978 - 2002). Both of the death-eligibility rates reported in Column B are

9

based on a screen for death eligibility of M1, M2, and VM cases in Nebraska that employed the

10

same methodology that we used to screen California M1, M2, and VM cases for this project.33

11

The reported death-eligibility rates are 25% for Nebraska compared to 55% for California during

12

the Carlos Window and 59% under 2008 law.34 Those two California rates are respectively 2.2

13

(55%/25%) and 2.4 (59%/25%) times higher than the Nebraska rate. Moreover, the California

14

rates represent a 120% (30/25) expansion over the Nebraska rate under Carlos Window

15

California law and a 136% (34/25) expansion under 2008 California law.
49.

16

Part III of Table 3 reports death-eligibility rates nationwide and for the four states

17

whose rates are reported in Parts I and II of Table 3. The research methodology used to produce

18

the Column B estimates in Part III is different than the methodology used to produce the

19

estimates reported in Parts I and II. Specifically, the Part III estimates were produced in an

20

analysis of death eligibility in each state among all murder and non-negligent manslaughter cases

21

reported to the FBI in Supplemental Homicide Reports (SHR) by state law enforcement

22
23
24
25
26
27
28

32

We estimated these narrowing rates in a replication of the analysis that produced the
results reported in Table 2, Column E with all of the M1 and M2 cases combined for the
procedure.
33
The death-eligibility screen of the Nebraska cases was conducted under my supervision
in connection with the identification of death eligible cases as the foundation for a study that
Professor Woodworth and I conducted of the Nebraska death penalty system. David C. Baldus,
George Woodworth, Catherine M. Grosso, and Aaron M. Christ¸ Arbitrariness and
Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of
the Nebraska Experience (1973-1999), 81 U. of Neb. L. Rev. 486, 542 tbl. 2 (2002).
34

See supra Table 1, Part I, Row 4, Columns B and D.

Declaration of David C. Baldus

17

Exhibit F
Page 67

1

authorities.35
50.

2

Of particular note is the comparability of the results reported for New Jersey,

3

Maryland, and Nebraska in Part III of Table 3, based on the SHR methodology, and the results

4

reported for those states in Parts I and II, which are based on a screening of all M1, M2, and VM

5

convictions, as the case may be. The estimated death-eligibility rates based on the two different

6

methodologies (case screening method versus SHR method) are: New Jersey, 21% versus 25.5%;

7

Maryland, 21% versus 21.9%; and Nebraska, 25% versus 28.9%. The comparability of these

8

estimates enhances our confidence in the validity of both estimates for each state in Part III of

9

Table 3. Their comparability also enhances our confidence in the validity of the SHR based

10

death-eligibility estimates reported in Table 4 below for each American death penalty state.
51.

11

Part I of Table 4 reports the estimated state death-eligibility rate for each death

12

penalty state classified by region and state, while Part II of the table rank orders those states by

13

their estimated death-eligibility rates. In Part I of Table 4 California is in Region 9 – Pacific

14

States – where its rate of 37.8% is 35% (9.8/28) higher than its two neighbors Oregon and

15

Washington, each at 28%. Part II of Table 4, which rank orders the states from low to high in

16

terms of their estimated death-eligibility rates, places California at the top of the list with a

17

death-eligibility rate of 37.8%.
52.

18

In assessing the death-eligibility rates reported in Part III of Table 3 and in Table

19
20
21
22
23
24
25
26
27
28

35

Jeffrey Fagan, Franklin E. Zimring, & Amanda Geller, Capital Punishment and Capital
Murder: Market Share and the Deterrent Effects of the Death Penalty, 84 Tex. L. Rev. 1803,
1816-17 (2006) describe their methodology as follows. “The SHR has the unique advantage of
providing detailed, case-level information about the context and circumstances of each homicide
event known to the police. This allows us to identify the presence of factors that map onto the
statutory framework of the Texas murder statutes and more broadly onto the Model Penal Code
aggravating factors.” To generate a death-eligibility estimate for each state, the authors
classified a murder or non-negligent homicide as death eligible if it included any of “the
following elements that are part of the recurrent language of capital-eligible homicides across the
states: (a) killings during the commission of robbery, burglary, rape or sexual assault, arson, and
kidnapping; (b) killing of children below age six: (c) multiple-victim killings; (d) ‘gangland’
killing involving organized crime of street gangs; (e) institution killings where the offender was
confined in a correctional or other governmental institution; (f) sniper killings… (g) killings in
the course of drug business.” They also defined a law enforcement officer victim as a qualifying
aggravating factor. When the defendant’s age was known cases were classified as not death
eligible if the defendant was under 16 years of age at the time of the offense.

Declaration of David C. Baldus

18

Exhibit F
Page 68

TABLE 4
Part I: Nationwide and State Death-Eligibility Rates Based on the Percentage of Death-Eligible Murders
Among All Intentional Homicides (Murder and Non-Negligent Manslaughter) Broken Down by
Region and State (1978-2003)1
A
Region/State
1
2

3

4

5

6

7

8

9

National Average
Northeast
Connecticut
New Hampshire
New Jersey
New York
Pennsylvania
East North Central
Illinois
Indiana
Ohio
West North Central
Kansas
Missouri
Nebraska
South Dakota
South Atlantic
Delaware
Florida
Georgia
Maryland
North Carolina
South Carolina
Virginia
East South Central
Alabama
Kentucky
Mississippi
Tennessee
West South Central
Arkansas
Louisiana
Oklahoma
Texas
Mountain
Arizona
Colorado
Idaho
Montana
Nevada
New Mexico
Utah
Wyoming

B
Percentage of Homicides that are
Death Eligible1
23.8%

C
95% Confidence Interval for
Estimate in Column B
23.0%, 24.6%

23.2
31.9
25.5
20.4
25.0

21%, 25%
26%, 38%
24%, 27%
18%, 22%
24%, 26%

28.9
24.0
22.0

27%, 31%
22%. 25%
21%, 23%

23.9
22.4
28.9
27.4

20%, 28%
21%, 24%
25%, 32%
21%, 34%

18.4
18.2
20.3
21.9
16.8
22.5
20.6

14%, 23%
17%, 20%
18%, 22%
20%, 23%
16%, 18%
21%, 24%
20%, 22%

13.1
18.2
19.7
18.7

12%, 15%
16%, 20%
18%, 22%
17%, 20%

23.0
18.3
28.3
21.7

21%, 25%
17%, 19%
25%, 32%
20%, 23%

23.8
26.1
29.7
26.5
22.7
22.9
30.0
26.9

22%, 25%
24%, 28%
25%, 34%
20%, 33%
21%, 24%
21%, 25%
27%, 33%
22%, 32%

37.8
28.0
28.0

36%, 40%
25%, 30%
26%, 30%

Pacific
California
Oregon
Washington

1

The estimates in Parts I and II of this table are based on the number of death-eligible homicides reported to the FBI
using the Fagan-Geller-Zimring estimation procedure described supra note 35.

Exhibit F
Page 69

Part II: State Death-Eligibility Rates Rank Ordered From Low (Alabama) to High
(California) (1978-2003)
A
State
Alabama
North Carolina
Florida
Kentucky
Louisiana
Delaware
Tennessee
Mississippi
Georgia
New York
Virginia
Texas
Maryland
Ohio
Missouri
South Carolina
Nevada
New Mexico
Arkansas
Connecticut
Arizona
Kansas
Indiana
Pennsylvania

B
Percent of Homicides that
are Death Eligible
13.1
16.8
18.2
18.2
18.3
18.4
18.7
19.7
20.3
20.4
20.6
21.7
21.9
22.0
22.4
22.5
22.7
22.9
23.0
23.2
23.8
23.9
24.0
25.0

New Jersey
Colorado
Montana
Wyoming
South Dakota
Oregon
Washington
Oklahoma
Nebraska
Illinois
Idaho
Utah
New Hampshire
California

25.5
26.1
26.5
26.9
27.4
28.0
28.0
28.3
28.9
28.9
29.7
30.0
31.9
37.8

C
95% Confidence Interval for
Estimate in Column B
12%, 15%
16%, 18%
17%, 20%
16%, 20%
17%, 19%
14%, 23%
17%, 20%
18%, 22%
18%, 22%
18%, 22%
20%, 22%
20%, 23%
20%, 23%
21%, 23%
21%, 24%
21%, 24%
21%, 24%
21%, 25%
21%, 25%
21%, 25%
22%, 25%
20%, 28%
22%, 25%
24%, 26%
24%, 27%
24%, 28%
20%, 33%
22%, 32%
21%, 34%
25%. 30%
26%, 30%
25%, 32%
25%, 32%
27%, 31%
25%, 34%
27%, 33%
26%, 38%
36%, 40%

Exhibit F
Page 70

1

4, it should be noted that the reported California estimate of a 37.8% death-eligibility rate

2

underestimates the actual rate. The reason is that the SHR-based methodology on which the

3

Table 3, Part III and Table 4 estimates are based reflects only a minor “lying in wait” type

4

aggravating circumstance – “sniper killings,” the only species of “lying in wait” that is included

5

in the FBI’s SHR database. The broad scope of California’s lying-in-wait special circumstance

6

(section 190.2(a) (15)) is simply not reflected in the SHR-based estimates of death eligibility.

7

Professor Woodworth’s declaration filed in this case documents in paragraph 9 on page 2 that

8

after adjustment for the scope of California’s lying in wait and criminal street gang special

9

circumstances, a valid estimate of California’s rate of death eligibility under the SHR data is

10

50.3% rather than the 37.8 rate reported in Part II of Table 4.
53.

11

Against this background it is useful to consider California’s death-eligibility rate

12

vis-a-vis SHR based death-eligibility rates for the states identified in Part III of Table 3.

13

Compared to the states listed in Rows 2-5, the California rate of death eligibility is 59%

14

(14/23.8) higher than the nation as a whole, 48% (12.3/25.5) higher than New Jersey, 73%

15

(15.9/21.9) higher than Maryland, and 31% (8.9/28.9) higher than Nebraska.
54.

16

The data in Table 4 and Figure 1 document California’s outlier status in four

17

ways.36 First, Part II of Table 4 demonstrates that compared to the states with the second and

18

third highest death-eligibility rates, California’s death-eligibility rate of 37.8% is 18% (5.9/31.9)

19

higher than New Hampshire’s and 26% (7.8/30) higher than Utah’s. Second, all of the major

20

death penalty states have substantially lower death-eligibility rates than California. In this

21

regard, it is useful to compare California’s rate with representative states listed in bold font in the

22

four quartiles of states in Part II of Table 4. Compared to Louisiana, the median state in the first

23

quartile of states with a death-eligibility rate of 18.3%, California’s rate is 107% (19.5/18.3)

24

higher and compared to Missouri, the median state in the second quartile of states with a death-

25

eligibility rate of 22.4%, California’s rate is 69% (15.4/22.4) higher. Compared to New Jersey,

26
27
28

36

An outlier is defined as “an observation that lies outside the overall pattern of a
distribution.” Moore, D.S. and McCabe, G.P. Introduction to the Practice of Statistics (1999),
http://mathworld.wolfram.com/Outlie.html.

Declaration of David C. Baldus

19

Exhibit F
Page 71

FIGURE 1
THE DEATH-ELIGIBILITY RATES IN TABLE 4, PART B DISPLAYED IN A HISTOGRAM FROM ALABAMA
WITH RATE 13 TO CALIFORNIA WITH RATE 38
(The height of each bar indicates the number of states sharing that death-eligibility rate)

5.0

Frequency

4.0

3.0

2.0
AL

NH

CA

1.0

0.0
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38
Death-Eligibility Rates

Exhibit F
Page 72

1

the median state in the third quartile of states with a death-eligibility rate of 25.5%, California’s

2

rate is 48% (12.3/25.5) higher and compared to Nebraska the median state in the fourth quartile

3

of states with a death-eligibility rate of 28.9%, California’s rate is 31% (8.9/28.9) higher. Third,

4

the data in Part II of Table 4 and Figure 1 indicate that the 5.9-percentage-point gap in death-

5

eligibility rates between California and New Hampshire, California’s closest near neighbor is 5

6

to 6 times larger than the gaps in rates between all of the other states in the second, third, and

7

fourth quartiles of the distribution. Finally, the formal definition of “outlier” calls for a score of

8

38.5 to qualify as an outlier in the distribution presented in Figure 1.37 Based on the data in Part

9

II of Table 4, California’s rate of 37.8 falls 0.7 of a percentage point short of that qualifying

10

number, even without considering the effects of the limited lying-in-wait data in the SHR

11

database.

12

CAPITAL CHARGING AND SENTENCING OUTCOMES AMONG FACTUALLY
DEATH-ELIGIBLE POST-FURMAN CALIFORNIA MURDER CASES

13

55.

14
15
16
17
18
19

all factually death-eligible post-Furman cases. A factually death-eligible case involves the
factual presence of first-degree murder (M1) liability and the factual presence of one or more
California special circumstances under Carlos Window or 2008 California law as the case may
be.38 If the facts presented in the probation report for a case satisfy this test, the crime of
conviction does not determine the factual death eligibility of the case.39
56.

20
21

Figure 2 and Table 5 document capital charging and sentencing outcomes among

Figure 2 documents the flow of death-eligible cases through four decision points

in the process. At stage 1, the prosecutor determines whether to charge the case capitally by

22
23
24
25
26
27
28

37

In statistical parlance, the first quartile is the 25th percentile and the third quartile is the
75 percentile; they are, respectively, the median of the lower 50% and the upper 50% of the
data. A convenient definition of an outlier is a point which falls more than 1.5 times the
interquartile range above the third quartile or that far below the first quartile as the case may be.
Id. In this case the interquartile range is 7 -- the difference between the 25th percentile of the
death-eligibility rates, New York (20.4), and the 75th percentile of the death-eligibility rates,
South Dakota (27.4).
38
See supra para. 24-29 for a discussion of the methodology we used to classify cases as
factually M1 and death eligible.
th

39

Id.

Declaration of David C. Baldus

20

Exhibit F
Page 73

FIGURE 2
CAPITAL CHARGING AND SENTENCING OUTCOMES AMONG CASES THAT WERE DEATH-ELIGIBLE
UNDER CARLOS WINDOW LAW OR 2008 LAW: CALIFORNIA, 1978-2002
Stage 1
1

Did the Prosecutor Allege One or More Special Circumstances (S.C.)?
Yes:
29% (4,585/16,007)

1A

No:
71% (11,422/16,007)

1B

Stage 2
Did the Prosecutor Delete
All S.C. Allegations
Unilaterally or in a Plea Bargain?

2

2B

2A

No:
80% (3,680/4,585)

Yes:
20%
(905/
4,585)

Stages 31
Were the S.C.
Circumstances
Dismissed by the Court
or Rejected by a Fact
Finder?
No:
3B
3A
A S.C. Was
Found by a
Yes:
Fact Finder or
Admitted by
the Defendant
3

83%
(3,067/3,680)

17%
(613/
3,680)

Stage 42
4

Was a Death or
LWOP Sentence
Imposed?
4A

4B

Death
23%

LWOP
77%

(705/
3,067)

(2,362/
3,067)

5

5A

Death and LWOP Sentencing Rates
Among All Death Eligible Cases

Death
4.6%
(705/15,394)

1

5B

LWOP
15.3%
(2,362/15,394)

At stage 3, special circumstances were found in a guilt trial or admitted by the defendant.
At stage 4, a death or LWOP sentence was imposed after a penalty trial unless the prosecutor agreed to or the court
imposed a term of years. The data suggest that approximately 9% of the cases with a special circumstance found or
admitted by the defendant resulted in a term of years.

2

Exhibit F
Page 74

Exhibit F
Page 75
25%, 32%

95%
Confidence
Interval for
Col. B
Estimate

15.3% (2,362/15,394)

4.6% (705/15,394)

3. A LWOP Sentence
Imposed

4. A Death Sentence
Imposed

6.8% (412/6,059)

10.1% (614/6,059)

69% (1,027/1,480)

24% (1,480/6,181)

Outcome Rate
Under
Carlos Window
Law From 1/1/78
Through the Carlos
Window (10/13/87)

D

4%, 10%

7%, 13%

59%, 79%

19%, 28%

95%
Confidence
Interval for
Col. D
Estimate

E

3.1% (293/9,335)

18.7% (1,748/9,335)

66% (2,040/3,105)

32% (3,105/9,826)

Outcome Rate
Under 2008 Law
From the End of
the Carlos Window
(10/14/87) Through
6/6/02

F

1%, 5%

14%, 23%

56%, 76%

26%, 37%

95%
Confidence
Interval for
Col. F
Estimate

G

The Carlos Window was (12/12/83 – 10/13/87) supra note 4. The time periods before and after the Carlos Window embraced in this table were (01/01/78 –
12/11/83) and (10/14/87– 6/30/02), respectively.
2
The cases in this analysis include those reported in Column D, which were death eligible under Carlos Window law, and the cases reported in Column F, which
were death eligible under 2008 law.

1

12%, 18%

67% (3,067/4,585)

2. One or More Special
Circumstances Found
Among Those Alleged

3%, 6%

59%, 74%

29% (4,585/16,007)

1978-2002
Outcome Rate2

Charging and
Sentencing Outcome

C

1. One or More Special
Circumstances Alleged

B

A

CAPITAL CHARGING AND SENTENCING OUTCOMES IN DEATH-ELIGIBLE CASES 1978-2002 (COLUMNS B AND C), FROM 1/1/78 THROUGH
1
THE CARLOS WINDOW (COLUMNS D AND E), AND FROM THE END OF THE CARLOS WINDOW THROUGH 6/6/02 (COLUMNS F AND G)

TABLE 5

1

alleging one or more special circumstances, which occurred approximately 29% of the time. At

2

stage 2, the prosecutor may delete the special circumstances unilaterally or as part of a plea

3

bargain with the defendant, which occurs in approximately 20% of the cases in which special

4

circumstances had been alleged. At stage 3, the court may dismiss the special circumstance

5

allegations or the fact finder may reject them as not proved. These outcomes occurred in a

6

relatively small percentage of the cases that advanced this far in the process. For cases in which

7

a special circumstance is found present or admitted by the defendant, the prosecutor determines

8

whether to advance the case to a penalty trial or to waive the death penalty in which event the

9

court will impose a life-without-the-possibility-of-parole (LWOP) sentence or a term of years.

10

While the number of penalty trials is unknown, the data document at stage 4 a distribution of

11

sentencing outcomes with 23% (705/3,067) death sentences and 77% (2,362/3,067) LWOP

12

sentences.40 Box 5A at the foot of Figure 2 reports a 4.6% death sentencing rate among all death

13

eligible cases and Box 5B reports a 15.3% LWOP sentencing rate among those cases.
57.

14

Table 5 presents similar findings with contrasts between the early years of the

15

post-Furman system (1/1/1978 through 10/12/1987) and more recent years (10/13/1987 through

16

6/30/2002). Column A of Table 5 identifies the charging and sentencing outcomes of interest

17

and Column B reports the outcomes for the entire period of the study. Column D presents the

18

rates through the Carlos Window, while Column F reports the results from the later post-Carlos

19

Window period.

20

circumstances were alleged in 29% of the cases that were death eligible under the Carlos

21

Window or 2008 California law. Columns D and F report that the rates were 24% and 32%

22

respectively during the earlier and later periods. We also have collateral evidence on this

Row 1, Column B, documents that between 1978 and 2002, special

23
24
25
26
27
28

40

The data also suggest that approximately 9% of the cases with a special circumstance
found or admitted by the defendant resulted in a term of years, which may be imposed when it is
agreed to by the prosecutor or imposed by the court. Although we were able to identify all cases
in our sample in which the defendant was sentenced to death, we have less confidence in our
ability to identify all cases in which the defendant was sentenced to LWOP because some
probation reports omit this information and we did not have access to alternate sources
identifying all defendants who have or could have been sentenced to LWOP.

Declaration of David C. Baldus

21

Exhibit F
Page 76

1

outcome. A recent study41 documents that between August 1977 and December 31, 1986,

2

prosecutors sought death sentences in 58% (11/19) of the felony-murder cases prosecuted in San

3

Joaquin County. This finding is comparable to the special circumstance filing rates documented

4

in our statewide data for robbery felony-murder cases, with an average rate of 50%

5

(2,598/5,227).42
58.

6

Row 2, Column B of Table 5 documents that during 1978-2002 special

7

circumstances were found to be present by the judge or jury or admitted by the defendant in 67%

8

of the death-eligible cases in which they were alleged, while Columns D and F report that those

9

rates were 69% and 66% respectively during the earlier and later periods.
59.

10

The data indicate that the death penalty is waived in a large number of cases

11

unilaterally or in plea bargains, in which event the case does not advance to a penalty trial.

12

Unfortunately, our data do not squarely focus on the rate that death-eligible cases advance to a

13

penalty trial.43 However, we have a useful proxy measure for that outcome – the rate that one or

14

more special circumstances were found by a jury or judge or admitted by the defendant in death-

15

eligible cases. Our data document that a special circumstance was found by a jury or court or

16

admitted by the defendant in 21% (3,354/16,007) of the cases in which a special circumstance

17

could have been alleged and prosecuted. This measure overstates the rate that cases advance to a

18

penalty trial because prosecutors often do not seek a death sentence after a special circumstance

19

has been found true in the guilt trial and proceed solely to a LWOP or term-of-years sentence.

20

(Our data suggest that approximately 9% of the cases with a special circumstance found or

21

admitted by the defendant resulted in a term of years, rather than a death or a life-without-the-

22

possibility of-parole sentence.) The measure does provide an upper limit of that rate, and our

23

data suggest that many fewer than 21% of the death-eligible cases actually advanced to a penalty

24
25
26
27
28

41

Catherine Lee, Hispanics and the Death Penalty: Discriminatory Charging Practices in
San Joaquin County, California, 35 J. of Crim. Just. 17, 21, tbl. 2 (2007).
42
The rate of filing a special circumstance allegation in such cases was 40% (870/2,185)
during and before the Carlos Window, and 56% (1,708/3,042) after the Carlos Window.
43
Many of the probation reports used in this study were prepared before the guilt trial was
conducted and, at best, the story typically ends with the guilt trial verdict.

Declaration of David C. Baldus

22

Exhibit F
Page 77

1

trial. This rate is substantially lower than the rates at which prosecutors in other jurisdictions

2

have traditionally advanced cases to a penalty trial,44 although those rates appear to have

3

declined within the last two decades.45
60.

4

Row 3, Column B of Table 5 reports a 15.3% LWOP sentencing rate for the entire

5

1978-2002 period. Columns D and F indicate that the rate increased from 10.1% during the

6

earlier period to 18.7% during the later period, a 85% (8.6/10.1) increase.
61.

7

Row 4, Column B of Table 5 reports a death sentencing rate of 4.6% among all

8

death-eligible cases in the universe. Columns D and E report rates of 6.8% for the earlier period

9

and 3.1% for the later period, a difference that represents a 54% (3.7/6.8) decline in the death

10

sentencing rate in the later period. When we limit the documentation of death sentencing rates to

11

death sentences that were affirmed on appeals, the overall rate declines to 3.7%.46
62.

12

Also of note is the death-sentencing rate among a subset of cases that is not

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

44

David C. Baldus, George Woodworth, & Charles A. Pulaski, Jr. Equal Justice And The
Death Penalty: A Legal And Empirical Analysis 327, tbl. 56 (1990) [EJDP] (the rate in Georgia
1973-1980 was 32% (228/707)); David C. Baldus, George Woodworth, David Zuckerman, Neil
Alan Weiner, & Barbara Broffitt, Racial Discrimination and the Death Penalty in the PostFurman Era: An Empirical and Legal Overview, With Recent Findings From Philadelphia, 83
Cornell L. Rev. 1638, 1677, tbl.1 (1998) [Philadelphia] (the rate in Philadelphia County 1983-93
was 54% (384/707)); David C. Baldus, George Woodworth, Catherine M. Grosso, & Aaron M.
Christ¸ Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and
Empirical Analysis of the Nebraska Experience (1973-1999), 81 U. of Neb. L. Rev. 486, 547
(2002) [Nebraska] (the rate in Nebraska 1973-99 was 48% (89/185)); Maryland, supra note 28 at
52, Fig.1 (the rate in Maryland 1978-99 was 14% (180/1311); N.J Rpt. supra note 27,
Appendices and Tables, at tbl. 3 (the rate in New Jersey 1983-1991 was 54% (132/246).
45
David C. Baldus, George Woodworth, & Catherine M. Grosso, Race and Proportionality
Since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and
Avoidance, 39 Col. H. Rights L. Rev.143, 168 (2007) (the rate at which New Jersey prosecutors
advanced cases to a penalty trial declined “from a rate of 52% in the 1980s to a rate of 10% in
the period from 1999-2004”).
46

This outcome measure distinguishes between death sentence cases in which the sentence
was affirmed on appeal and cases in which the sentence or murder conviction was vacated
because of trial court error that drew into question the legitimacy of the conviction or sentence.
Examples include ineffective assistance of counsel and the vacation of special circumstance
findings for want of evidentiary sufficiency. Of the 61 death sentenced cases in our sample, the
death sentences of the following eight defendants were so classified: Sixto, Felipe
Evanjelista, 48 Cal. 3d 1247, 1252 (1989); Hunter, Michael Wayne, 2005 WL 1377738; Turner,
Thaddaeus Louis, 2009 WL 2394152; Marshall, Ryan Michael, 566 F. Supp. 2d 1053 (2008);
Lucas, Larry Douglas, 33 Cal. 4th 682, 737 (2004); Duncan, Henry Earl, 528 F.3d 1222 (2008);
Heard, James, Matthew, 31 Cal. 4th 946, 982 (2003), and Mayfield, Demetrie, 270 F. 3d 915
(2001).

Declaration of David C. Baldus

23

Exhibit F
Page 78

1

identified in Table 5 – death-eligible cases that resulted in a M1 conviction at trial or by a guilty

2

plea. The death-sentencing rate for death-eligible M1 conviction cases was 8.7% (705/8,111)

3

with a (5%, 12%) 95% confidence interval. The death-sentencing rate for death-eligible M1

4

conviction cases in the Carlos Window is 9.4% (119/1,269) with a (6.5%, 12.2%) 95%

5

confidence interval.
63.

6

As noted above,47 our data do not squarely focus on the advancement of cases to a

7

penalty trial. As a result, we can only approximate the penalty trial death sentencing rate, with a

8

proxy measure that computes the death sentencing rate among all cases in which jurors and

9

judges found or the defendant admitted to one or more special circumstances being present in the

10

case. The statewide rate for this measure is 21% (705/3,354). This figure clearly underestimates

11

the actual penalty trial death-sentencing rate because it overstates the number of cases that

12

advanced to a penalty trial. However, it does suggest a lower limit of that rate. In addition,

13

estimates of this measure over time are of interest. During the early period from 1978 through

14

the Carlos Window, the rate was 40% (412/1,035) while during the post-Carlos Window period

15

the rate was 13% (293/2,319), which represents a 67% (27/40) decline in this rate between the

16

two periods.48

17
47

18
19
20
21
22
23
24
25
26
27
28

See supra para. 59.
These findings are consistent with three empirical studies of California penalty trials of
which we are aware. The first is a pre-Furman study, which examined the outcomes of 238
unitary penalty trials between 1958 and 1966, documented a 43% (103/238) death sentencing
rate. Special Issue, A Study of the California Penalty Trial in First-Degree-Murder Cases, 21
Stan. L. Rev. 1297, 1299 (1969). The second is a post-Furman study that documents between
1977 and 1984 a statewide penalty trial death sentencing rate of 29% (144/496). Stephen P.
Klein & John E. Rolph, Relationship of Offender and Victim Race to Death Penalty Sentences in
California, 32 Jurimetrics J. 33, 38, tbl. 1 (1991). The third study is a survey by the California
State Public Defender’s Office which reviewed capital charging and sentencing outcomes for a
five year period from August 1977 to July 1983. It documents a 48% (148/309) penalty trial
death sentencing rate. William J. Kopeny, Capital Punishment—Who Should Choose, 2 W. State
U. Law Rev. 383, 388, n. 33 (1985).
The death sentencing rate estimated in our California data and the rates in these three
studies are within the range of penalty trial death sentencing rates observed in many states.
EJDP, supra note 44 at 327, tbl. 50 (the rate in Georgia 1973-1980 was 55% (140/253); David
Baldus, When Symbols Clash: Reflection on The Future of The Comparative Proportionality
Review of Death Sentences, 26 Seton Hall L. Rev. 1582, 1600, tbl. 4 (the rate in New Jersey
1983-95 was 29% (48/168); Philadelphia, supra note 44 at 1702 (the rate in Philadelphia County
1983-93 was 29% (110/384); Nebraska, supra note 44 at 545, fig. 2 (the rate in Nebraska 197899 was 15% (29/185)); Maryland, supra note 28 at 545, fig.1 (the rate in Maryland 1978-99 was
48

Declaration of David C. Baldus

24

Exhibit F
Page 79

64.

1

Of particular note is the death sentencing rate among death-eligible cases in which

2

the prosecutor actively sought a death sentence by filing an allegation of one or more special

3

circumstances. For the entire 1978-2002 period, that rate was 15% (705/4,585).
65.

4

California’s very low death sentencing rate among death-eligible cases is the

5

product of decisions at the four stages in its capital charging and sentencing process outlined in

6

Figure 2, which we can illustrate with a hypothetical that assumes a population of 100 death-

7

eligible cases. First, prosecutors seek death sentences in only 29 of those cases (Stage 1), and

8

dismiss those allegations before trial (Stage 2) in about 6 of those cases (20% of 29). For 77 of

9

the hypothetical defendants, therefore, the risk of a death sentence is completely off the table

10

before trial. For the remaining 23 defendants facing special circumstance allegations, 19 (81%

11

of 23) may advance to a penalty trial after a fact finder finds one or more special circumstances

12

present in the case or the defendant admits to a special circumstance (Stage 3). For these

13

defendants, the penalty trial results in 4 (21% of 19) defendants being sentenced to death who

14

contribute to the overall 4.6% risk of a death sentence being imposed among all death-eligible

15

offenders that is documented in Row 4, Column B of Table 5 and at the foot of Figure 2 in Box

16

5A.
66.

17

For this last point of decision we highlight again the trend of LWOP and death

18

sentencing decision making. Table 5, Row 3, Columns D and F, document a 85% (8.6/10.1)

19

increase in the LWOP sentencing rate between the early and later years. After the Carlos

20

Window, the ratio of LWOP to death sentences increased to 6.0 to 1 (18.7/3.1%) from the 1.5 to

21

1 (10.1%/6.8%) ratio that existed during the Carlos Window and before.
67.

22

The low California death sentencing rates documented in this study are consistent

23

with the results of comparative studies which place California at the low end among death

24

penalty states in terms of their death sentencing frequencies.49 It is also useful to compare the

25
26

6% (76/1311)).
49

27
28

For example, in an extensive study of death sentences imposed per 1,000 homicides
(1973-1995) only Maryland with a rate of 5 is lower than California with a rate of 8. The median
rate is 18. John Blume, Theodor Eisenberg, and Martin T. Wells, Explaining Death Row’s
Population and Racial Composition, 1 J. of Empirical Legal Studies 165, 172, tbl. 1 (2004). In
Declaration of David C. Baldus

25

Exhibit F
Page 80

1

average post-Furman California death sentencing rate of 4.6% with pre-Furman Georgia’s 15%

2

death sentencing rate among all death-eligible murder trial conviction cases. The results of the

3

comparison can be expressed in two ways. First, the pre-Furman rate50 of 15% exceeds the post-

4

Furman California rate by a factor of 3.3 (15/4.6). Second, California’s post-Furman death

5

sentencing rate among all death-eligible cases is 69% (10.4/15) lower than the death sentencing

6

rate in pre-Furman Georgia murder trial conviction cases.

7

CONCLUSIONS

8

68.

This declaration reports the findings of an empirical study of 27,453 post-Furman

9

California convictions for M1, M2, and VM cases with a date of offense between January 1978

10

and June 2002. The results are based on an analysis of a stratified random sample of 1,900 cases

11

from the 27,453 case universe.

12

69.

Our findings support three principal conclusions.

First, the rate of death

13

eligibility among California homicide cases is the highest in the nation by every measure. This

14

result is a product of the number and breadth of special circumstances under California law. A

15

major contribution to this over breadth is California’s lying in wait (LIW) special circumstance.

16

Under Carlos Window law (1978-2002), it was factually present in 29% (7,915/27,453) of

17

California’s M1, M2, and VM cases and it was the sole special circumstance present in 21%

18

(5,843/27,453) of them.51

19

70.

Second, the post-Furman narrowing rate of death eligibility in California

20
21
22
23
24
25
26
27
28

another study of death sentencing rates per murder committed in each state from 1977 through
1999, California was ranked in the fourth quartile with a rate of 0.013 death sentences per
murder, with the highest rate of 0.060 in Nevada and the lowest rate of 0.004 in Colorado. James
S. Liebman, Jeffrey Fagan and Valerie West. 2000. A Broken System: Error Rates in Capital
Cases,
1973-1995,
New
York:
Columbia
University,
87,
fig.
17
http://www2.law.columbia.edu/instructionalservices/ liebman /liebman final.pdf .
50
See EJDP, supra note 44, at 85, tbl. 5 (reporting a 15% (44/293) rate among death
eligible murder trial convictions in a study we conducted in 1982.)
51
Under 2008 law, the lying-in-wait special circumstance was factually present in 29%
(7,996/27,453) of all cases and it was the sole special circumstance present in 15%
(4,239/27,453) of those cases. Under Carlos Window law, the lying–in-wait special
circumstance was factually present in 23% (714/3,069) of all cases in which a special
circumstance was found. The comparable number for the robbery felony-murder special
circumstance was 55% (1,702/3,069).

Declaration of David C. Baldus

26

Exhibit F
Page 81

Exhibit F
Page 82

1
2
3
4
5
6
7
8
9
10
11
12
13
APPENDIX A

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Declaration of David C. Baldus

Exhibit F
Page 83

DAVID C. BALDUS

Curriculum Vitae – 5/10/2010

Joseph B. Tye Professor, University of Iowa College of Law $ Iowa City, Iowa 52242-1113
Ph: 319/335-9012 - Fax: [phone] - Internet: [e-mail]

ACADEMIC/PROFESSIONAL

EMPLOYMENT

UNIVERSITY OF IOWA COLLEGE OF LAW, IOWA CITY, IOWA
Joseph B. Tye Professor, 1983 - Present
Professor, 1972-83
Associate Professor, 1969-71
Subjects: Criminal Law, Anti-discrimination Law, and Capital Punishment\

SYRACUSE UNIVERSITY COLLEGE OF LAW
Center for Interdisciplinary Legal Studies
Professor and Director, 1981-82

NATIONAL SCIENCE FOUNDATION
Director, Law and Social Sciences Program, 1975-76

NEW JERSEY SUPREME COURT
Special Master for the Proportionality Review of Death Sentences, 1988-91
PRE-ACADEMIC EMPLOYMENT

PENNSYLVANIA CONSTITUTIONAL CONVENTION
Delegate, 1967-68

GENERAL PRACTICE OF LAW, Pittsburgh, Pennsylvania
1964-68

U.S. ARMY/ARMY SECURITY AGENCY (ASA)
Lieutenant, 1958-59

EDUCATION
YALE LAW SCHOOL
LL.M., 1969 - LL.B., 1964

UNIVERSITY OF PITTSBURGH
M.A., 1962 (Political Science)

DARTMOUTH COLLEGE
A.B., 1957 (Government Major)

BOOKS AND MONOGRAPHS
Statistical Proof of Discrimination, 386 pages, Shepards-McGraw Hill (1980) (with James
W. Cole).

Exhibit F
Page 84

Annual Supplement, Statistical Proof of Discrimination (1981), (1982), (1983), (1984),
(1985), (1986), and (1987) (with James W. Cole).
Equal Justice and the Death Penalty: A Legal and Empirical Analysis, 698 pages,
Northeastern University Press (1990) (with G. Woodworth & C. Pulaski).
ARTICLES, BOOK CHAPTERS & REPORTS

"State Competence to Terminate Concession Agreements with Aliens," 53 Kentucky L.J.
56-97 (1964).
"Pennsylvania's Proposed Film Censorship Law - House Bill 1098," 4 Duquesne L. Rev.
429-40 (1966).
"Welfare As A Loan: An Empirical Study of the Recovery of Public Assistance Payments
in the United States," 25 Stan. L. Rev. 123-250 (1973).
"A Model Statute for the Regulation of Abandoned Railroad Rights of Way" in Re-Use
Planning for Abandoned Transportation Properties, Final Report to DOT. 109-25 (K.
Deuker and R. Zimmerman eds. 1975) (with S. Grow).
"A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect
of Capital Punishment," 85 Yale. L. J. 170-86 (1976) (with J. Cole).
"Quantitative Proof of Intentional Discrimination," 1 Evaluation Quarterly 53-85 (1977)
(with J. Cole).
"Statistical Modeling to Support a Claim of Intentional Discrimination," Am. Statistical
Assn., Proceedings of the Soc. Stat. Sec. Part I pp. 465-70 (1977) (junior author with J.
Cole).
"Quantitative Methods for Judging the Comparative Excessiveness of Death Sentences" in
The Use/Nonuse/Misues of Applied Social Research in the Court: Conference
Proceedings, 83-94 (M. Saks & C. Baron eds. 1980).
"Identifying Comparatively Excessive Sentences of Death," 33 Stan. L. Rev. 601-77
(1980) (with C. Pulaski, G. Woodworth, and F. Kyle).
"Comparative Review of Death Sentences: An Empirical Study of the Georgia
Experience," 74 J. Crim. L. & Criminology 661-753 (1983) (with C. Pulaski & G.
Woodworth).
"Monitoring and Evaluating Contemporary Death Sentencing Systems: Lessons From
Georgia," 18 U.C. Davis L. Rev.1375-1407 (1985) (with C. Pulaski & G. Woodworth).
"Arbitrariness and Discrimination in the Administration of the Death Penalty: A
Challenge to State Supreme Courts," 15 Stetson L. Rev. 133-261 (1986) (with C. Pulaski
and G. Woodworth).
"Law and Statistics in Conflict: Reflections on McCleskey v. Kemp," in Handbook on
Psychology and Law 251-73 (D. Kagehiro & W. Laufer eds. 1991) (with G. Woodworth &
C. Pulaski).
"Race Discrimination and the Death Penalty," in Oxford Companion to the Supreme Court of
the United States 705-07 (K. Hall ed. 1991) (with C. Pulaski and G. Woodworth).

2
Exhibit F
Page 85

Death Penalty Proportionality Review Project: Final Report to The New Jersey Supreme
Court, 120 pages plus 200+ pages of tables and appendices, (September 24, 1991).
State v. Robert Marshall; Report to the New Jersey Supreme Court, 80 pages (September 24,
1991).
"Proportionality Review of Death Sentences: The View of the Special Master," 6 Chance
18-27 (Summer 1993) (with G. Woodworth).
"Reflections on the 'Inevitability' of Racial Discrimination in Capital Sentencing and the
'Impossibility' of its Prevention, Detection, and Correction," 51 Wash & Lee L. Rev. 41979 (1994) (with G. Woodworth and C. Pulaski).
"Improving Judicial Oversight of Jury Damage Assessments: A Proposal for the
Comparative Additur/Remittitur Review of Awards for Nonpecuniary Harms and Punitive
Damages,” 80 Iowa L. Rev. 1109-1267 (1995) (with J. MacQueen & G. Woodworth).
Keynote Address: "The Death Penalty Dialogue Between Law and Social Science." 70
Ind. U. L. Rev. 1033- 41 (1995).
"Additur/Remittitur Review: An Empirically Based Methodology for the Comparative
Review of General Damages Awards for Pain, Suffering, and Loss of Enjoyment of Life,"
(with G. Woodworth and J. MacQueen) in Reforming the Civil Justice System, 386-415
(Likamer, ed. 1996).
"When Symbols Clash: Reflections on the Future of the Comparative Proportionality
Review of Death Sentences," 26 Seton Hall L. Rev. 1582-1606 (1996).
“Race Discrimination in America’s Capital Punishment System Since Furman v. Georgia
(1972): the evidence of race disparities and the record of our courts and legislature in
addressing the issue,” Report to A.B.A. Section of Individual Rights and Responsibilities
(7/25/97) (19 pages) (with G. Woodworth).
“Pediatric Traumatic Brain Injury and Burn Patients in the Civil Justice System: The
Prevalence and Impact of Psychiatric Symptomatology,” 26 J .Am. Acad. Psychiatry L.
247-58 (1998) (junior author with J. Max et al.).
“Race Discrimination and the Death Penalty: An Empirical and Legal Overview” (with G.
Woodworth) in America’s Experiment with Capital Punishment) 385-416 (J. Acker et al,
eds. 1st ed.1998); pp. 501-52 in (J. Acker et al. eds. 2nd ed. 2003).
“Race Discrimination and the Death Penalty in the Post Furman Era: An Empirical and
Legal Overview, With Recent Findings From Philadelphia,” 83 Cornell L. Rev. 1638-1770
(1998) (with G. Woodworth et al.).
“The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical
Analysis,” 3 U. Penn. J. of Constitutional Law_ 3-170 (2000) (with G. Woodworth et al.).
Disposition Of Nebraska Capital and Non-Capital Homicide Cases (1973-1999): A Legal
and Empirical Analysis: Report to the Nebraska Commission on Criminal Justice and Law
Enforcement, (October 10, 2001), 120 pages (with G. Woodworth et al.).
“Death Penalty Symposium: A Call to Action: A Moratorium on Executions Presented by
the ABA,” (October 12, 2000 at the Carter Center, Atlanta, Ga.), 4 New York City L. Rev.
113, 152-155 (2002) (DB remarks).

3
Exhibit F
Page 86

Evidence of Race and Gender Discrimination in the Prosecutorial Use of Peremptory
Strikes in Philadelphia Capital Trials: The Case of Commonwealth v. Harold Wilson
(1989) (March 16, 2001) (with G. Woodworth et al.), a 30 page report with approximately
40 pages of tables figures and an Appendix submitted in post conviction proceeding in
Philadelphia state court.
Race-of-Victim and Race of Defendant Disparities in the Administration of Marylsnd’s
Capital Charging and Sentencing System (2001) (with G. Woodworth), a 25 page report.
Evidence of Race and Gender Discrimination in the Prosecutorial Use of Peremptory
Strikes in Philadelphia Capital Trials: The Case of Commonwealth v. Robert Cook (1988)
(March 16, 2001) (with G. Woodworth et al.), a 30 page report with approximately 40
pages of tables figures and an Appendix submitted in post conviction proceeding in
Philadelphia state court.
Evidence of a Pattern and Practice of Purposeful Race Discrimination in the
Administration of the Death Penalty in Philadelphia County, 1978-2000: The Case of
Commonwealth v. Lance Arrington (May 29, 2002) (with G. Woodworth et al.), a two
volume report of over 90 pages submitted in state post-trial proceedings in which
Professor Woodworth and I testified December 13, 2005 in Philadelphia.
“Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and
Empirical Analysis of the Nebraska Experience (1973-1999),” 81 Neb. L. Rev. 486-754
(2002) (with G. Woodworth et al.).
Evidence of Race and Gender Discrimination in Prosecutor Jack McMahon’s Use of
Peremptory Strikes (September 4, 2003) (with G. Woodworth), a 47 page report with
approximately 40 pages of tables figures and an Appendix submitted in Commonwealth v.
Luis Montilla in post conviction proceeding in Philadelphia state court.
“Race Discrimination in the Administration Of The Death Penalty: An Overview Of The
Empirical Evidence With Special Emphasis On The Post-1990 Research,” 39 Crim. L.
Bulletin 194-226 (2003) (with G. Woodworth).
“Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the
Interaction of Fact and Perception,” 53 De Paul L. Rev. 1411-95 (2004) (with G.
Woodworth).
Evidence of Race and Gender Discrimination in the Commonwealth’s Use of Peremptory
Strikes in Capital Cases: Commonwealth v. Jesse Bond (1993) (November 15, 2005), (with
G. Woodworth), a 13 page report with approximately 40 pages of tables figures and an
Appendix submitted in habeas corpus proceeding in federal court.
Evidence of Race and Gender Discrimination in the Commonwealth’s Use of Peremptory
Strikes in Capital Cases: Commonwealth v. Lee Baker (1984) (February 2, 2006) (with G.
Woodworth), a 23 page report with approximately 40 pages of tables figures and an
Appendix submitted in habeas corpus proceeding in federal court.
Evidence of Race and Gender Discrimination in the Commonwealth’s Use of Peremptory
Strikes in Capital Cases: Commonwealth v. Robert Lark (1985) (September 9, 2006), (with
G. Woodworth), a 23 page report with 40 pages of tables figures and an Appendix
submitted in habeas corpus proceeding in federal court.
“Race and Proportionality Since McCleskey v. Kemp (1987): Different Actors with Mixed
Strategies of Denial and Avoidance,” 39 Col. Human Rights L.Rev. 143-77 (2007) (with G.
Woodworth and Catherine M. Grosso).

4
Exhibit F
Page 87

Evidence of Racial Discrimination in the Administration of the Death Penalty: Arkansas
Judicial Circuits 8 & 8S, 1990-2005 (July 3, 2008) (a 13 page report with tables and figures
filed in Arkansas v. Frank William Jr. a clemency proceeding (2008)) (with N Weiner, G.
Woodworth and J. Brain)
Evidence of the Inevitability and Ineradicability of Arbitrariness and Discrimination in the
Administration of Capital Punishment in Maryland – Past, Present and Future (September 5,
2008) (a 32 page report with tables, figures and an Appendix submitted to the Maryland
Capital Punishment Commission that is based on my testimony before the Commission July
30, 2008 (with G. Woodworth).
“Perspectives, Approaches, and Future Directions in Death Penalty Proportionality
Studies”in The Future Of America’s Death Penalty 135-52 (C. Lanier et al. eds. 2009)
(with G. Woodworth et al.)
“Empirical Studies of Race and Geographic Discrimination in the Administration
of the Death Penalty: A Primer on the Key Methodological Issues” (with G. Woodworth et al.)
in The Future Of America’s Death Penalty 153-98 (C. Lanier et al. eds. 2009) (with G.
Woodworth et al.)
“McCleskey v. Kemp (1987): Denial, Avoidance, and the Legitimization of Racial
Discrimination in the Administration of the Death Penalty,” (with G. Woodworth, John C.
Boger, and Charles A. Pulaski, Jr.), in Capital Punishment Stories 229-77 (J. Steiker and J.
Blume eds. 2009)
“Evidence of Racial Discrimination in the Use of the Death Penalty: A Story From Southwest
Arkansas (1990-2005) With Special Reference to the Case of Death Row Inmate Frank
Williams, Jr.” 76 Tennessee L. Rev. 555-613 (2009) (with N Weiner, G. Woodworth and J.
Brain)
“The Impact of Civilian Aggravating Facts on the Military Death Penalty (1984-2005):
Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military
Justice” 43 U. of Mich. J. of L. Reform 569-615 (2010) (Catherine M. Grosso, David C.
Baldus, George Woodworth)
Work in Progress
“The Role of Intimacy in the Prosecution and Sentencing of Capital Murder Cases in the
United States Armed Forces (1984-2005), U. of N. M. L. Rev. (2010) (in press) (Catherine M.
Grosso, David C. Baldus, George Woodworth) (approximately 30 law review pages).
“Racial Discrimination in the Administration of the Death Penalty: the experience of the
United States Armed Forces (1984-2005)” (with G. Woodworth et al.) (approximately 50 law
review pages).

BOOK REVIEWS
"D. Chambers, Making Fathers Pay," 78 Mich. L. Rev. 750 (1980).
M. O. Finkelstein, Quantitative Methods in Law & W. Fairley & F. Mosteller, Statistics
and Public Policy, 1980 Am. Bar. Found. R. J. 409.
"W. White, The Death Penalty in the Eighties" & "H. Bedau, Death is Different," 1 Crim.
L. Forum 185 (1989) (with G. Woodworth & C. Pulaski).

5
Exhibit F
Page 88

PAPERS PRESENTED SINCE 1985
"Arbitrariness and Discrimination in Capital Sentencing: A Challenge For Presented State
Supreme Courts," Stetson Law School, March 1985.
"Arbitrariness and Discrimination in Capital Sentencing: The Georgia Experience,"
Fortunoff Criminal Justice Colloquium, N.Y.U. Law School, May 1985.
"Statistical Proof in Employment Discrimination Litigation: An Overview", State of
Washington Judicial Conference, Tacoma, Washington, August, 1985.
"Arbitrariness and Discrimination in Capital Sentencing" Symposium on Capital
Punishment, Columbia Law School, December 1985.
"Capital Punishment -- A Tragic Choice?" Mount Mercy College, Cedar Rapids, Iowa,
April 1986.
"Consistency and Evenhandedness in Federal Death Sentencing Under Proposed
Legislation," testimony before House Criminal Justice Subcommittee, Washington, D.C.,
May 1986.
"The Impact of Prosecutorial Discretion on Arbitrariness and Discrimination," American
Criminology Society, Atlanta, GA, November 1986.
"Death Penalty Cases: The Role of Empirical Data," National Judicial College of San
Diego, February 10, 1987.
"Individual Rights and the Constitution: Issues and Trends in the Death Penalty,"
Controversy & The Constitution Conference, Ames, Iowa, February 12, 1987.
"Equal Justice in Proposed Federal Death-Sentencing Legislation: lessons from the states,"
Testimony before the United States Sentencing Commission, Hearing on the
Commission's responsibility regarding promulgation of sentencing guidelines for federal
capital offenses, Washington, D.C., February 17, 1987.
"Usable Knowledge from the Social Sciences: A Lawyer's Perspective," University of
Nebraska College of Law, April 10, 1987.
"Equal Justice and the Death Penalty: Some Empirical Evidence," University of Nebraska
College of Law, April 10, 1987.
"McCleskey v. Kemp: A methodological critique," Law and Society Association,
Washington, D.C., June 12, 1987.
"Law and Statistics in Conflict: Reflections on McCleskey v. Kemp," University of Bristol
(March 4, 1988), University of Durham (March 16, 1988), Hebrew University (April 17,
1988), University of Reading (May 6, 1988), University of Oxford (May 27, 1988).
"Arbitrariness and Discrimination in the Imposition of the Death Penalty," Testimony
before Senate Judiciary Committee, Washington, D.C., October 2, 1989.
"Arbitrariness and Racial Discrimination in Post-Furman Death Sentencing: Implications
for the Racial Justice Act and Proposed Federal Death-Penalty Legislation," Testimony
before the Constitutional and Civil Rights Subcommittee, House Judiciary Committee,
Washington, D.C., May 3, 1990.

6
Exhibit F
Page 89

"The Proportionality Review of Death Sentence: New Jersey's Options," New Jersey Bar
Assembly, Headquarters, New Brunswick, New Jersey, April 23, 1992.
"Proportionality Review of Death Sentences: New Jersey's Options," Law and Society
Association, Philadelphia, May 24, 1992.
"Regulating the Quantum of Damages for Personal Injuries through Enhanced AdditurRemittitur Review," Law and Society Association, Philadelphia, May 28, 1992.
"Proportionality Review of Death Sentences" & "Race Discrimination in the Use of the
Death Penalty," University of Michigan Law School, January 1993.
"Reflections on the Reinstatement of the Death Penalty in Iowa," Public Lecture, Coe
College, April 1993.
"Discretion and Disparity in the Administration of the Death Penalty" & "Racial and
Ethnic Bias in the Criminal Law: Some Trends and Prospects," AALS Workshop on
Criminal Law, Washington, D.C., October 29 & 30, 1993.
"Improving Judicial Oversight of Jury Damages Assessments: A Proposal for the
Comparative Additur/Remittitur Review of Awards for non-pecuniary harms and punitive
damages," Conference of Chief Justices, Williamsburg, Virginia, January 1993;
Department of Pediatrics, University of Iowa Medical School, February, 1993; Conference
on Civil Justice Reform, NYU Law School, October 1993.
"Racial Discrimination in Capital Sentencing: Reflections on its Inevitability and the
Impossibility of its Prevention and Cure," Symposium on Racism in the Criminal Law,
Washington and Lee Law School, March 11, 1994.
"Racial Discrimination in Mortgage Lending," Department of Housing and Urban
Development, January 19, 1994.
"The Death Penalty Dialogue Between Law and Social Science," Keynote Address,
Symposium, Capital Jury Project, Indiana Law School, February 24, 1995.
"Reflections on the Failure to Reinstate the Death Penalty in Iowa" & "Claims of
Arbitrariness and Discrimination Under State Law; recent trends." Legal Defense Fund
Annual Conference on the Death Penalty, Airlie House, Virginia, July 28 & 29, 1995.
"Statistical Approaches to Title VII Discrimination Claims" Defense Lawyers Association,
Des Moines, September 1995.
"The Marshall Hypothesis Revisited," University of Pittsburgh Law School, October 1995.
"When Symbols Clash, Reflections of Proportionality Review, Death Sentences,"
Luncheon speaker, Death Penalty Conference, Seton Hall Law School, Nov. 2, 1995.
"Law As Symbol: explaining the uses of the death penalty in America," DePaul Law
School, Chicago, January 1996; Northwestern Law School, March 1996.
"Post-McCleskey Discrimination Claims: Law, Proof and Possibilities," Plenary Session,
Legal Defense Fund Annual Conference on the Death Penalty, Georgetown University,
July 26, 1996.
"Preliminary Finding from the Pennsylvania Capital Charging and Sentencing Study" and
"Law As Symbol," American Criminology Society, November 1996.

7
Exhibit F
Page 90

"The Death Penalty and How It Might Affect the Iowa Practitioner," Iowa Bar Association
Criminal Law Seminar, Des Moines, March 21, 1997.
“Race Discrimination and the Death Penalty: Recent Findings from Philadelphia” Plenary
Session, Legal Defense Fund Annual Conference on the Death Penalty, Airlie House,
Virginia, July 1997; Death Penalty Symposium; Cornell Law School March 1998;
American Society of Criminology, Washington D.C. November 1998.
“The Death Penalty for Iowa: What Would It Bring,” testimony before the Iowa House
Judiciary Committee, March 1998.
“Race Discrimination and the Proportionality Review of Death Sentences,” Yale Law
School, March 1998; St. John’s Law School, March 1999.
“The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical
Analysis,” Research Club, University of Iowa, December 17, 1999; Center for SocioLegal Studies, University of Iowa, January 21, 2000; “Race, Crime, and the Constitution
Symposium,” University of Pennsylvania Law School, January 29, 2000; Law Dept.,
Erlangen University, Erlangen, Germany, July 18, 2000.
“Race Discrimination in the Administration of the Death Penalty,” Senate Judiciary
Committee, Pennsylvania Legislature, Harrisburg, Pa., January 22, 2000; The Governor’s
Race and the Death Penalty Task Force, Tallahassee, Florida, March 30, 2000.
“Reflections on the Use of Capital Punishment in Europe and the United States,” Political
Science Dept., Erlangen University, Erlangen, Germany, July 17, 2000.
“Race Discrimination in the Administration of the Death Penalty: Current Concerns and
Possible Strategies for Addressing the Issue During a Moratorium on Executions,” ABA’s
Call to Action: A Moratorium on Executions, ABA Conference, Carter Center, Atlanta,
Georgia, October 12, 2001.
“Race and Gender Disparities in the Administration of the Death Penalty: Recent Finding
From Philadelphia and Legislative and Judicial Strategies to Reduce Race and Gender
Effects,” Pennsylvania Supreme Court Committee on Racial and Gender Bias in the
Justice System, Philadelphia, Pa. December 6, 2000.
“Race Discrimination in the Administration of the Death Penalty,” Death Penalty
Symposium, NYU Law School, March 29, 2001.
“Reflections on the Use of the Death Penalty in Europe and the United States,” Capital
Punishment Symposium, Ohio State Law School, March 31, 2001.
“Arbitrariness and Discrimination in the Administration of the Death Penalty: the
Nebraska Experience,” Judiciary Committee, Nebraska Legislature, October 18, 2001;
University of Nebraska Law School, February 22, 2002.
“Reflections on Comparative Proportionality Review” and “Race Discrimination and the
Death Penalty: the post-1990 research,” John Jay School of Criminal Justice, New York
City, November 11, 2002.
“Proving Systemic Systemic Disparate Treatment in Capital Charging and Sentencing and
in the Use of Peremptory Challenge” and “Understanding Equal Justice and the Death
Penalty: the Role of Social Science,” Yale Law School, New Haven, Conn., April 24,
2003.

8

Exhibit F
Page 91

“Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the
Interaction of Fact and Perception,” DePaul Law Review Capital Punishment Symposium,
Chicago Ill, Oct. 23, 2003.
“Excessiveness and Race Discrimination in the Military Death Penalty: Lessons from Civilian
Courts Since Furman v. Georgia (1972),” Judicial Conference of the Court of Appeals For The
Armed Forces, Columbus School of Law, Washington, D.C. May 19, 2004.
“Questions and Answers Concerning Evidence of Racial Disparities in the Administration of
the Death Penalty,” CLE Panel, NAACP Convention, Milwaukee, WI, July 11, 2005.
“Race Discrimination and the Administration of the Death Penalty: the experience of the
United States Armed Forces: preliminary findings” University of Illinois Law School Seminar,
April 15, 2006 and Harvard Law School conference on Race and the Death Penalty, May 5,
2006.
“Racial Discrimination in the Administration of the Death Penalty: the Maryland experience
(1978-2000),”Maryland Summit on the Abolition of Capital Punishment, Baltimore Md.,
January 2007.
“Race and Proportionality since McCleskey v. Kemp (1987): different actors with mixed
strategies of denial and avoidance,” Columbia Law School and NAACP Symposium “Pursing
Racial Fairness in the Administration of Justice: Twenty Years After Mc McCleskey v. Kemp,
March 3, 2007; University of Miami Law School, Seminar, March 19, 2007; Georgia State
University Law School, Atlanta, Conference on Race Discrimination and the Administration of
the Criminal Justice System, October 4, 2007.
“The Story of McCleskey v. Kemp: Capital Punishment and the Legitimization of Racial
Discrimination,” University of Texas Law School, Symposium on Capital Punishment Stories,
Foundation Press (2009), November 4, 2007.
“Evidence of the Inevitability and Ineradicability of Arbitrariness and Discrimination in the
Administration of Capital Punishment in Maryland – Past, Present and Future,” Testimony
before the Maryland Capital Punishment Commission, Annapolis, Maryland, July 30, 2008.

Miscellaneous
Member: American Bar Association; American Law Institute; American Society of
Criminology; Law and Society Association.
Board of Editors: Evaluation Quarterly (1976-79); Law & Policy Quarterly (1978-79);
Law and Human Behavior (1984- ); Psychology, Public Policy and Law (1994- ).
Board of Trustees, Law and Society Association (1992-94).
Grant Recipient, N.S.F. Law and Social Science Program
1974-75--"Quantitative Proof of Discrimination."
Invited Participant, N.S.F. Sponsored Conference on the Use of Scientific Evidence in
Judicial Proceedings, November 1977.
Invited Participant, ABA--AAAS Conference on Cross Education of Lawyers and
Scientists, Airlie House, Virginia, May 1978.

9

Exhibit F
Page 92

Reporter, Roscoe Pound Am. Tr. Lawyers Foundation Conf. On Capital Punishment,
Harvard University, June 1980.
Grant Recipient, National Institute of Justice, 1980-81, "The Impact of Procedural Reform
on Capital Sentencing: the Georgia Experience."
Consultant, Delaware Supreme Court, April 1981 and South Dakota Supreme Court,
November 1981, on the proportionality review of death sentences.
Member, Special Committee of the Association of the Bar of New York on Empirical Data
in Legal Decision Making and the Judicial Management of Large Data Sets (1980-82).
Grant Recipient, NSF Law & Social Science Program.
Homicide Case Processing" (1983).

"A Longitudinal Study of

Consultant, National Center for State Courts project on the proportionality review of death
sentences (1982-84).
Expert witness in McCleskey v. Kemp, 105 S.Ct. 1756 (1987), a capital case challenging
the constitutionality of Georgia's capital sentence process.
Recipient, Law and Society Association's Harry Kalven Prize for Distinguished
Scholarship in Law and Society (with G. Woodworth & C. Pulaski) for our capital
punishment research ( June 11, 1987).
Grant recipient, State Justice Institute, 1988-1992, "Judicial Management of Judicial
Awards for Noneconomic and Punitive Damages" (with Dr. J. MacQueen & J. Gittler).
Special Master for Proportionality Review of Death Sentences for the New Jersey
Supreme Court: 1988-91.
Member, AALS Committee on Curriculum and Research (1994-97).
Recipient, “Michael J. Brody Award for Faculty Excellence in Service to the University of
Iowa”, October 1996.
Recipient, “Award For Faculty Excellence,” Board of Regents, State of Iowa, October 18,
2000.
Grant recipient, Nebraska Crime Commission, “The Disposition of Nebraska Homicide
Cases (1973-1999)” (2000).
Grant recipient, JEHT Foundation, support for study of racial discrimination in the death
penalty: the experience of the United States Armed Forces: 1984-2005 (October 2005).
Recipient, Harold Hughes Award, Iowans Against the Death Penalty (October 27, 2007)
for advocacy and research used in opposition to the reintroduction of the death penalty in
Iowa.
Member, AAUP, Iowa Chapter (1969-___), Member, Executive Board (1992- ___),
Member Committee A (1985-__)

10
Exhibit F
Page 93

1
2
3
4
5
6
7
8
9
10
11
12
13
APPENDIX B

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Declaration of David C. Baldus

Exhibit F
Page 94

GEORGE WOODWORTH
CURRICULUM VITAE
February 25, 2009
Address:
George Woodworth
Department of Statistics
and Actuarial Science
241 SH
University of Iowa
Iowa City, IA 52242

FAX:
Voice:
Home:
Internet:

319-335-3017
319-335-0816
319-337-2000
[e-mail]

Personal Data:
Born: May 29, 1940, Oklahoma City, Oklahoma
Marital Status: Married with two children
Education:
B.A. Carleton College, Northfield, Minnesota, 1962
Ph.D. University of Minnesota, 1966
Employment:
Instructor, Department of Statistics, University of Minnesota, 1965-66.
Assistant Professor, Department of Statistics, Stanford University, 1966-71.
Assistent (Visiting Assistant Professor), Department of Mathematical Statistics, Lund Institute of
Technology, Lund, Sweden, 1970-71 (on leave from Stanford).
Associate Professor, Department of Statistics, The University of Iowa, Iowa City, Iowa, 19711996.
Associate Director, Director (1973-1980), Acting Director (1982-3), Adviser (1984-present):
University of Iowa Statistical Consulting Center.
Associate Professor, Department of Preventive Medicine, Division of Biostatistics, University of
Iowa, 1990-1996.
Professor, Department of Statistics and Actuarial Science, University of Iowa, 1996-.
Professor, Department of Preventive Medicine, Division of Biostatistics, University of Iowa
1996- .
Research Interests:
Bayesian Inference and Pedagogy
Smooth Bayesian Inference
Bayesian Experimental Design
Applications of Statistics in Biomedical Science, Behavioral Science, and Law and Justice
Multivariate Analysis and Discrete Multivariate Analysis

1

Exhibit F
Page 95

Dissertations Supervised:
Stanford University Ph.D.:
1. Reading, James (1970). "A Multiple Comparison Procedure for Classifying All Pairs out of k
Means as Close or Distant".
2. Withers, Christopher Stroude (1971). "Power and Efficiency of a Class of Goodness of Fit
Tests."
3. Rogers, Warren (1971). "Exact Null Distributions and Asymptotic Expansions for Rank Test
Statistics."
University of Iowa, Ph.D.:
4. Huang, Yih-Min (1974). "Statistical Methods for Analyzing the Effect of Work-Group Size
Upon Performance."
5. Scott, Robert C. (1975). "Smear and Sweep: a Method of Forming Indices for Use in Testing
in Non-Linear Systems."
6. Hoffman, Lorrie Lawrence (1981). "Missing Data in Growth Curves."
7. Patterson, David Austin (1984). "Three-Population Partial Discrimination."
8. Mori, Motomi (1989). "Analysis of Incomplete Longitudinal Data in the Presence of
Informative Right Censoring." (Biostatistics, joint with Robert Woolson)
9. Galbiati-Riesco, Jorge Mauricio (1990). "Estimation of Choice Models Under
Endogenous/Exogenous Stratification."
10. Shin, Mi-Young (1993). "Consistent Covariance Estimation for Stratified Prospective and
Case-Control Logistic Regression."
11. Lian, Ie-Bin (1993). "The Impact of Variable Selection Procedures on Inference for a
Forced-in Variable in Linear and Logistic Regression."
12. Nunez Anton, Vicente A. (1993). "Analysis of Longitudinal Data with Unequally Spaced
Observations and Time Dependent Correlated Errors."
13. Bosch, Ronald J. (1993). "Quantile Regression with Smoothing Splines."
14. Samawi, Hani Michel (1994). "Power Estimation for Two-Sample Tests Using Importance
and Antithetic Resampling." (Biostatistics, joint with Jon Lemke)
15. Chen, Hungta (1995). “Analysis of Irregularly Spaced Longitudinal Data Using a Kernel
Smoothing Approach.” (Biostatistics)
16. Nichols, Sara (2000). “Logistic Ridge Regression.” (Biostatistics)
17. Dehkordi, Farideh Hosseini (2001). "Smoothness Priors for Longitudinal Covariance
Functions." (Biostatistics)
18. Meyers, Troy (2002) "Frequentist properties of credible intervals."
19. Zhao, Lili, (2006) "Bayesian decision-theoretic group sequential analysis with survival
endpoints in Phase II clinical trials."
20. Chakravarty, Subhashish (2007) “Bayesian surface smoothing under anisotropy.”

2

Exhibit F
Page 96

University of Iowa, MS:
19. Juang , Chifei (1993). "A Comparison of Ordinary Least Squares and Missing Information
Estimates for Incomplete Block Data."
20. Wu, Chia-Chen (1993). "Time Series Methods in the Analysis of Automatically Recorded
Behavioral Data."
21. Peng, Ying (1995). "A Comparison of Chi-Square and Normal Confidence Intervals for
Variance Components Estimated by Maximum Likelihood."
22. Wu, Li-Wei (1996). “CART Analysis of the Georgia Charging and Sentencing Study.”
23. Meyers,Troy (2000) "Bias Correction for Single-Subject Information Transfer in
Audiological Testing."
Publications
Refereed Publications (Law review articles are reviewed and edited by law students):
1. Savage, I.R., Sobel, M., Woodworth, G.G. (1966), "Fine Structure of the Ordering of
Probabilities of Rank Orders in the Two Sample Case," Annals of Mathematical Statistics,
37, 98-112.
2. Basu, A.P., Woodworth, G.G. (1967), "A Note on Nonparametric Tests for Scale," Annals
of Mathematical Statistics, 38, 274-277.
3. Rizvi, M.M., Sobel, M., Woodworth, G.G. (1968), "Non-parametric Ranking Procedures
for Comparison with a Control," Annals of Mathematical Statistics, 39, 2075-2093.
4. Woodworth, G.G. (1970), "Large Deviations, Bahadur Efficiency of Linear Rank
Statistics," Annals of Mathematical Statistics, 41, 251-183.
5. Rizvi, M.H., Woodworth, G.G. (1970), "On Selection Procedures Based on Ranks:
Counterexamples Concerning Least Favorable Configurations," Annals of Mathematical
Statistics, 41, 1942-1951.
6. Woodworth, G.G. (1976), "t for Two: Preposterior Analysis for Two Decision Makers:
Interval Estimates for the Mean," The American Statistician, 30, 168-171.
7. Hay, J.G., Wilson, B.D., Dapena, J., Woodworth, G.G. (1977), "A Computational
Technique to Determine the Angular Momentum of a Human Body," J. Biomechanics, 10,
269-277.
8. Woodworth, G.G. (1979), "Bayesian Full Rank MANOVA/MANCOVA: An Intermediate
Exposition with Interactive Computer Examples," Journal of Educational Statistics, 4(4),
357-404.
9. Baldus, DC., Pulaski, C.A., Woodworth, G.G., Kyle, F. (1980), "Identifying Comparatively
Excessive Sentences of Death: A Quantitative Approach," Stanford Law Review, 33(1),174.
10. Louviere, J.J., Henley, D.H., Woodworth, G.G., Meyer, J.R., Levin, I. P., Stoner, J.W.,
Curry, D., Anderson D.A. (1981), "Laboratory Simulation vs. Revealed Preference
Methods for Estimating Travel Demand Models: An Empirical Comparison,"
Transportation Research Record, 797, 42-50.
11. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1983), "Comparative Review of Death
Sentences: An Empirical Study of the Georgia Experience," The Journal of Criminal Law
and Criminology, 74(3), 661-753.

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12. Louviere, J.J., Woodworth, G.G. (1983), "Design and Analysis of Simulated Consumer
Choice of Allocation Experiments: An Approach Based on Aggregate Data," Journal of
Marketing Research, XX, 350-367.
13. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1986), "Monitoring and Evaluating
Contemporary Death Sentencing Systems: Lessons from Georgia," U.C. Davis Law Review,
18(4), 1375-1407.
14. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1986), "Arbitrariness and Discrimination
in the Administration of the Death Penalty: A Challenge to State Supreme Courts," Stetson
Law Review, XV(2), 133-261.
15. Bober, T., Putnam, C.A., Woodworth, G.G. (1987), "Factors Influencing the Angular
Velocity of a Human Limb Segment," Journal of Biomechanics, 20(5), 511-521.
16. Gantz, B.J., Tyler, R.S., Knutson, J.F., Woodworth, G.G., Abbas, P., McCabe, B.F.,
Hinrichs, J., Tye-Murray, N., Lansing, C., Kuk, F., Brown, C. (1988), "Evaluation of Five
Different Cochlear Implant Designs: Audiologic Assessment and Predictors of
Performance," Laryngoscope, 98(10), 1100-6.
17. Tye-Murray, N., Woodworth, G.G. (1989), "The Influence of Final Syllable Position on the
Vowel and Word Duration of Deaf Talkers," Journal of the Acoustical Society of America,
85, 313-321.
18. Baker, R.G., Van Nest, J., Woodworth, G.G. (1989), "Dissimilarity Coefficients for Fossil
Pollen Spectra from Iowa and Western Illinois During the Last 30,000 Years," Palynology,
13, 63-77.
19. Shymansky, J.A., Hedges, L.V., Woodworth, G.G. (1990), "A Reassessment of the Effects
of 60's Science Curricula on Student Performance," Journal of Research in Science
Teaching, 27(2), 127-144.
20. Tye-Murray, N., Purdy, S., Woodworth, G.G., Tyler, R.S. (1990), "Effect of Repair
Strategies on Visual Identification of Sentences," Journal of Speech and Hearing Disorders,
55, 621-627.
21. Cadoret, R.C., Troughton, E.P., Bagford, J.A., Woodworth, G.G. (1990), "Genetic and
Environmental Factors in Adoptee Antisocial Personality," European Archives of
Psychiatry and Neurological Sciences, 239(4), 231-240.
22. Chakraborty, G., Woodworth, G.G., Gaeth, G.J., Ettenson, R. (1991), "Screening for
Interactions Between Design Factors and Demographics in Choice-Based Conjoint,"
Journal of Business Research, 23(3), 219-238.
23. Kochar, S.C., Woodworth, G.G. (1991). "Rank order Probabilities for the Dispersion
Problem," Statistics & Probability Letters, 14(4), 203-208.
24. Knutson, J.F., Hinrichs, J.V., Tyler, R.S., Gantz, B.J., Schartz, H.A., Woodworth, G.G.
(1991), "Psychological Predictors of Audiological Outcomes of Multichannel Cochlear
Implants: Preliminary Findings," Annals of Otology, Rhinology & Laryngology, 100(10),
817-822.
25. Knutson, J.F., Schartz, H.A., Gantz, B.J., Tyler, R.S., Hinrichs, J.V., Woodworth, G.G.
(1991), “Psychological Change Following 18 Months of Cochlear Implant Use,” Annals of
Otology, Rhinology & Laryngology, 100(11), 877-882.
26. Kirby, R.F., Woodworth, C.H., Woodworth G.G., Johnson, A.K. (1991), "Beta-2
Adrenoceptor Mediated Vasodilation: Role in Cardiovascular Responses to Acute Stressors
in Spontaneously Hypertensive Rats," Clin. and Exper. Hypertension.- Part A, Theory and
Practice, 13(5), 1059-1068.

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27. Tye-Murray, N., Tyler, R.S., Woodworth, G.G., Gantz, B.J. (1992), "Performance over
Time with a Nucleus or Ineraid Cochlear Implant," Ear and Hearing, 13, 200-209.
28. Tye-Murray, N., Purdy, S.C., Woodworth, G.G. (1992), "Reported Use of Communication
Strategies by SHHH Members: Client, Talker, and Situational Variables," Journal of
Speech & Hearing Research, 35(3), 708-717.
29. Mori, M., Woodworth, G.G., Woolson, R.F. (1992), "Application of Empirical Bayes
Inference to Estimation of Rate of Change in the Presence of Informative Right Censoring,"
Statistics in Medicine, 11, 621-631.
30. Shymansky, J.A., Woodworth, G.G., Norman, O., Dunkhase, J., Matthews, C., Liu, C.T.
(1993), "A Study of Changes in Middle School Teachers' Understanding of Selected Ideas
in Science as a Function of an In-Service Program Focusing on Student Preconceptions," J.
Res. in Science Teaching, 30, 737-755.
31. Wallace, R.B., Ross, J.E., Huston, J.C., Kundel, C., Woodworth, G.G. (1993), "Iowa
FICSIT Trial: The Feasibility of Elderly Wearing a Hip Joint Protective Garment to Reduce
Hip Fractures," J. Am. Geriatr. Soc., 41(3), 338-340.
32. Gantz, B.J., Woodworth, G.G., Knutson, J. F., Abbas, P.J., Tyler, R.S. (1993), "Multivariate
Predictors of Success with Cochlear Implants," Advances in Oto-Rhino-Laryngology, 48,
153-67.
33. Mori, M., Woolson, R.F., Woodworth, G.G. (1994), "Slope Estimation in the Presence of
Informative Right Censoring: Modeling the Number of Observations as a Geometric
Random Variable," Biometrics, 50(1), 39-50.
34. Nunez-Anton, V., Woodworth, G.G. (1994), "Analysis of Longitudinal Data with
Unequally Spaced Observations and Time Dependent Correlated Errors," Biometrics, 50(2),
445-456.
35. Baldus, D.C., Woodworth, G.G., Pulaski, C.A. (1994), "Reflections on the Inevitability of
Racial Discrimination in Capital Sentencing and the Impossibility of Its Prevention,
Detection, and Correction," Washington and Lee Law Review, 51(2), 359-430.
36. Cutrona, C.E., Cadoret, R.J., Suhr, J.A., Richards, C.C., Troughton, E. Schutte, K.,
Woodworth, G. G. (1994), "Interpersonal Variables in the Prediction of Alcoholism
Among Adoptees: Evidence for Gene-Environment Interactions," Comprehensive
Psychiatry, 35(3), 171-9.
37. De Fillippo, C.L., Lansing, C.R., Elfenbein, J.L., Kallaus-Gay, A., Woodworth, G.G.
(1994), "Adjusting Tracking Rates for Text Difficulty via the Cloze Technique," Journal of
the American Academy of Audiology, 5(6), 366-78
38. Gantz, B.J., Tyler, R.S., Woodworth, G.G., Tye-Murray, N. Fryauf-Bertschy, H. (1994),
"Results of Multichannel Cochlear Implants in Congenital and Acquired Prelingually
Deafened Children: Five Year Follow-Up," Am. J. Otol., 15 (Supplement 2), 1-7.
39. Cadoret, R.J., Troughton, E., Woodworth, G.G. (1994), "Evidence of Heterogeneity of
Genetic Effect in Iowa Adoption Studies," Annals of the New York Academy of Sciences,
708, 59-71.
40. Bosch, R., Ye, Y., Woodworth, G.G. (1995), "An Interior Point Quadratic Programming
Algorithm Useful for Quantile Regression with Smoothing Splines," Computational
Statistics and Data Analysis, 19, 613-613.
41. Cadoret, R.J., Yates, W.R., Troughton, E., Woodworth, G.G., Stuart, M.A. (1995),
"Adoption Study Demonstrating Two Genetic Pathways to Drug Abuse," Archives of
General Psychiatry, 52(1), 42-52.

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42. Tye-Murray, N., Spencer, L., Woodworth, G.G. (1995), “Acquisition of Speech by Children
who have Prolonged Cochlear Implant Experience,” Journal of Speech & Hearing
Research, 38(2), 327-37.
43. Cadoret, R.J., Yates, W.R., Troughton, E., Woodworth, G.G., Stewart, M.A. (1995),
“Genetic-Environmental Interaction in the Genesis of Aggressivity and Conduct Disorders,”
Archives of General Psychiatry, 52(11), 916-924.
44. Tyler, R.S., Lowder, M.W., Parkinson, A.J., Woodworth, G.G., Gantz, B.J. (1995),
“Performance of Adult Ineraid and Nucleus Cochlear Implant Patients after 3.5 Years of
Use,” Audiology, 34(3), 135-144.
45. Baldus, D, MacQueen, JC, and Woodworth GG. (1995) "Improving Judicial Oversight of
Jury Damages Assessments: A Proposal for the Comparative Additur/Remittitur Review of
Awards for Nonpecuniary Harms and Punitive Damages," with John C. MacQueen and
George Woodworth, 80 Iowa Law Review 1109 (1995), 159 pages.
46. Parkinson, A.J., Tyler, R.S., Woodworth, G.G., Lowder, M., Gantz, B.J., (1996) "A WithinSubject Comparison of Adult Patients Using the Nucleus F0F1F2 and F0F1F2B3B4B5
Speech Processing Strategies," Journal of Speech & Hearing Research, Volume 39, 261277.
47. Baldus, D., MacQueen, J.C., Woodworth, G.G., (1996) “Improving Judicial Oversight of
Jury Damages Assessments: A Proposal for the Comparative Additur/Remittitur Review of
Awards for Nonpecuniary Harms and Punitive Damages,” Iowa Law Review, (80) 11091267.
48. Cadoret, Remi J., Yates, William R., Troughton, E., Woodworth, G.G. (1996) "An
Adoption Study of Drug Abuse/Dependency in Females," Comprehensive Psychiatry, Vol.
37, No. 2, 88-94.
49. Tripp-Reimer, T., Woodworth, G.G., McCloskey, J.C., Bulechek, G. (1996), “The
Dimensional Structure of Nursing Intervention,” Nursing Research 45(1) 10-17.
50. Tyler RS. Fryauf-Bertschy H. Gantz BJ. Kelsay DM. Woodworth GG. (1997) "Speech
perception in prelingually implanted children after four years," Advances in Oto-RhinoLaryngology. 52:187-92.
51. Tyler RS, Gantz BJ, Woodworth GG, Fryauf-Bertschy H, and Kelsay DM. (1997)
"Performance of 2- and 3-year-old children and prediction of 4-year from 1-year
performance. American Journal of Otology. 18(6 Suppl):S157-9, 1997.
52. Miller CA, Abbas PJ, Rubinstein JT, Robinson BK, Matsuoka AJ, and Woodworth G.
(1998) "Electrically evoked compound action potentials of guinea pig and cat: responses to
monopolar, monophasic stimulation." Hearing Research. 119(1-2):142-54, 1998 May.
53. Knutson JF, Murray KT, Husarek S, Westerhouse K, Woodworth G, Gantz BJ, and Tyler
RS. (1998) "Psychological change over 54 months of cochlear implant use." Ear &
Hearing, 19(3):191-201, 1998.
54. Gfeller K, Knutson JF, Woodworth G, Witt S, and DeBus B. (1998) "Timbral recognition
and appraisal by adult cochlear implant users and normal-hearing adults." Journal of the
American Academy of Audiology, 9(1):1-19, 1998.
55. Baldus D, Woodworth G, Zuckerman D, Weiner NA, Broffitt B. (1998) "Racial
Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal
Overview with Recent Findings from Philadelphia," Cornell Law Review, 88:6, 1998.
56. Green GE. Scott DA. McDonald JM. Woodworth GG. Sheffield VC. Smith RJ. Carrier rates
in the midwestern United States for GJB2 mutations causing inherited deafness. JAMA.
281(23):2211-6, 1999 Jun 16.
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57. Gantz BJ. Rubinstein JT. Gidley P. Woodworth GG. Surgical management of Bell's palsy.
Laryngoscope. 109(8):1177-88, 1999 Aug
58. Featherstone KA. Bloomfield JR. Lang AJ. Miller-Meeks MJ. Woodworth G. Steinert RF.
Driving simulation study: bilateral array multifocal versus bilateral AMO monofocal
intraocular lenses. Journal of Cataract & Refractive Surgery. 25(9):1254-62, 1999 Sep.
59. Weiler JM. Bloomfield JR. Woodworth GG. Grant AR. Layton TA. Brown TL. McKenzie
DR. Baker TW. Watson GS. Effects of fexofenadine, diphenhydramine, and alcohol on
driving performance. A randomized, placebo-controlled trial in the Iowa driving simulator.
Annals of Internal Medicine. 132(5):354-63, 2000 Mar 7
60. Tyler RS. Teagle HF. Kelsay DM. Gantz BJ. Woodworth GG. Parkinson AJ. Speech
perception by prelingually deaf children after six years of Cochlear implant use: effects of
age at implantation. Annals of Otology, Rhinology, & Laryngology - Supplement. 185:82-4,
2000 Dec.
61. Ballard KJ. Robin DA. Woodworth G. Zimba LD. Age-related changes in motor control
during articulator visuomotor tracking. Journal of Speech Language & Hearing Research.
44(4):763-77, 2001 Aug.
62. Gfeller K. Witt S. Woodworth G. Mehr MA. Knutson J. Effects of frequency, instrumental
family, and cochlear implant type on timbre recognition and appraisal. Annals of Otology,
Rhinology & Laryngology. 111(4):349-56, 2002 Apr.
63. Green GE. Scott DA. McDonald JM. Teagle HF. Tomblin BJ. Spencer LJ. Woodworth GG.
Knutson JF. Gantz BJ. Sheffield VC. Smith RJ. Performance of cochlear implant recipients
with GJB2-related deafness. American Journal of Medical Genetics. 109(3):167-70, 2002
May 1.
64. Weiler JM. Quinn SA. Woodworth GG. Brown DD. Layton TA. Maves KK. Does heparin
prophylaxis prevent exacerbations of hereditary angioedema?. Journal of Allergy & Clinical
Immunology. 109(6):995-1000, 2002 Jun.
65. Berkowitz RB. Woodworth GG. Lutz C. Weiler K. Weiler J. Moss M. Meeves S. Onset of
action, efficacy, and safety of fexofenadine 60 mg/pseudoephedrine 120 mg versus placebo
in the Atlanta allergen exposure unit. Annals of Allergy, Asthma, & Immunology. 89(1):3845, 2002 Jul.
66. Baldus, D, Woodworth GG, Grosso, C., Christ, M. (2002) “Arbitrariness and Discrimination
in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska
Experience (1973-1999),” with George Woodworth, Catherine M. Grosso, and Aaron M.
Christ, 81 Nebraska Law Review 486 (2002), 271 pages.
67. Baldus, D, and Woodworth GG. (2003) “Race Discrimination in the Administration of the
Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post1990 Research,” with George Woodworth, 39 Criminal Law Bulletin 194 (2003), 33 pages.
68. Kadane, J. and Woodworth G.G. (2004) "Hierarchical Models for Employment Decisions,"
Journal of Business and Economic Statistics, 1 April 2004, vol. 22, no. 2, pp. 182-193(12).
69. Woodworth, G.G. and Kadane, J.B. (2004) “Expert testimony supporting post-sentence civil
incarceration of violent sexual offenders.” Law Probablity and Risk, 2004 3: 221-241.
70. Baldus, D. and Woodworth, G.G., “Race Discrimination and the Legitimacy of Capital
Punishment: Reflections on the Interaction of Fact and Perception," 53 DePaul Law Review
1411 (2004).
71. Weiler K. Christ AM. Woodworth GG. Weiler RL. Weiler JM. “Quality of patient-reported
outcome data captured using paper and interactive voice response diaries in an allergic

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rhinitis study: is electronic data capture really better?. Annals of Allergy, Asthma, &
Immunology. 92(3):335-9, 2004 Mar.
72. Robin DA, Jacks A, Hageman C, Clark HM, Woodworth G., “Visuomotor tracking abilities
of speakers with apraxia of speech or conduction aphasia,” Brain and Language,
Aug;106(2):98-106. 2008.
73. Woodworth, G.G. and Kadane, J. "Age and Time-Varying Proportional Hazards Model for
Employment Discrimination," Annals of Applied Statistics, 2009 accepted pending
revisions.
74. Zhao, L and Woodworth, G.G. “Bayesian decision sequential analysis with survival endpoint
in phase II clinical trials,” Stat Med, 2009, Feb 18.
Books, Chapters:
75. Bober, T., Hay, J.G., Woodworth, G.G. (1979), "Muscle Pre-Stretch and Performance," in
Science in Athletics, eds. Juris Terauds and George G. Dales, Del Mar CA: Academic
Publishers, pp. 155-166.
76. Hay, J.G., Dapena, J., Wilson, B.D., Andrews, J.G., Woodworth, G.G. (1979), “An
Analysis of Joint Contributions to the Performance of a Gross Motor Skill," in International
Series on Biomechanics, Vol. 2B, Biomechanics VI-B, eds. Erling Asmussen and Kuert
Jorgensen, Baltimore: University Park Press, pp. 64-70.
77. Hay, J.G., Vaughan, C.L., Woodworth, G.G. (1980). "Technique and Performance:
Identifying the Limiting Factors," in Biomechanics VII-B, eds. Adam Morecki, Kazimerz
Fidelus, Krzysztof Kedzior, Andrzej Wit, Baltimore: University Park Press, pp. 511-520.
78. Woodworth, G.G. (1980). "Numerical Evaluation of Preposterior Expectations in the TwoParameter Normal Model, with an Application to Preposterior Consensus Analysis," in
Bayesian Analysis in Econometrics and Statistics, ed. Arnold Zellner, Amsterdam: NorthHolland Publishing Co., pp. 133-140.
79. Hodges, L.V., Shymansky, J.A., Woodworth, G.G. (1989), Modern Methods of MetaAnalysis: an NSTA Handbook, Washington, D.C.: National Science Teachers Association.
80. Baldus, D.C., Woodworth, G.G., Pulaski, C.A. (1990), Equal Justice and the Death
Penalty: A Legal and Empirical Analysis, Boston: Northeastern University Press.
81. Baldus, D., Pulaski, C., Woodworth GG (1992) "Law and Statutes in Conflict: Reflections
on McCleskey v. Kemp," in Handbook of Psychology and Law, edited by Dorothy K.
Kagehiro and William S. Laufer. New York: Springer-Verlag, 1992.
82. Baldus, D., Pulaski, C., Woodworth GG (1992) "Race Discrimination and the Death
Penalty," with Charles J. Pulaski, Jr. and George Woodworth, in The Oxford Companion to
the Supreme Court of the United States. New York: Oxford University Press, 1992, p 705-7.
83. Woodworth, G.G. (1994). "Managing Meta-Analytic Databases," in The Handbook of
Research Synthesis, eds. Harris Cooper and Larry V. Hedges, New York: Russell Sage
Foundation, pp. 177-189.
84. Lovelace, D. Cryer, J., Woodworth, G.G. (1994), Minitab Handbook to Accompany
Statistics for Business Data Analysis and Modelling, 2nd edition, Belmont, CA:
Wadsworth Publishing Company.
85. Tye-Murray, N. Kirk, K.L., Woodworth, G.G. (1994). "Speaking with the Cochlear Implant
Turned On and Turned Off," in Datenknovertierung, Reproduktion und Drick, eds. I.J.
Hochmair-Desoyer and E.S. Hochmair, Wien, Manz, pp. 552-556.

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86. Baldus, D. MacQueen, JC, Woodworth GG. (1996) "Additur/Remittitur Review: An
Empirically Based Methodology for the Comparative Review of General Damages Awards
for Pain, Suffering, and Loss of Enjoyment of Life," with John C. MacQueen and George
Woodworth, in Reforming the Civil Justice System, edited by Larry Kramer. New York:
New York University Press, 1996, p 386, 30 pages.
87. Baldus, D, and Woodworth, GG. (1998) "Race Discrimination and the Death Penalty: An
Empirical and Legal Overview," with George Woodworth, in America's Experiment with
Capital Punishment, edited by James C. Acker, Robert M. Bohm, and Charles S. Lanier.
Durham, NC: Carolina Academic Press, 1998, page 385, 32 pages.
88. Woodworth, George G. Biostatistic: A Bayesian Introduction. New York: John Wiley and
Sons, September, 2004.
Unrefereed Articles, Reviews.
89. Libby, D.L., Novick, M.R., Chen, J.A., Woodworth, G.G., Hamer, R.M. (1981), "The
Computer-Assisted Data Analysis (CADA) Monitor," The American Statistician, 35(3),
165-166.
90. Woodworth, G.G. (1987), "STATMATE/PLUS, Version 1.2," The American Statistician,
41(3), 231-233.
91. Hoffmaster, D., Woodworth, G.G. (1987), "A FORTRAN Version of the Super Duper
Pseudorandom Number Generator," Science Software Quarterly, 3(2), 100-102.
92. Baldus, D.C., Woodworth, G.G., Pulaski, C.A. (1987) “Death penalty in Georgia remains
racially suspect,” Atlanta Journal and Constitution, September 6, 1987.
93. Hawkins, D., Conaway, M., Hackl, P., Kovacevic, M., Sedransk, J., Woodworth, G.G.,
Bosch, R, Breen, C. (1989) “Report on Statistical Quality of Endocrine Society Journals,”
Endocrinology, 125(4), 1749-53.
94. Woodworth, G.G. (1989). "Statistics and the Death Penalty," Stats. The Magazine for
Students of Statistics, 2, 9-12.
95. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1989), "Reflections on 'Modern' Death
Sentencing Systems," Book review, Criminal Law Forum, 1, 190-197.
96. Baldus, D., Woodworth, G.G. (1993). “Proportionality: The View of the Special Master,”
Chance, New Directions for Statistics and Computers, 6(3), 9-17.
97. "Race Discrimination in America's Capital Punishment System since Furman v. Georgia
(1972): The Evidence of Race Disparities and the Record of Our Courts and Legislatures in
Addressing the Issue," with George Woodworth, Report to the A.B.A. Section of Individual
Rights and Responsibilities (1997), 19 pages.
98. Baldus, David C., George Woodworth, David Zuckerman, Neil Alan Weiner, and Barbara
Broffitt (2001). “The Use of Peremptory Challenges in Capital Murder Trials: A legal and
Empirical Analysis,” University of Pennsylvania Journal of Constitutional Law, February,
2001.
99. “Complement to Chapter 6. The WinBUGS Program,” in Bayesian Statistics: Principles,
Models, and Applications, Second Edition, by S. James Press, John Wiley and Sons, Inc.,
New York, 2002.

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Convention Papers, other Oral Presentations:
100. Woodworth, G.G. (1983), "Analysis of a Y-Stratified Sample: The Georgia Charging and
Sentencing Study," in Proceedings of the Second Workshop on Law and Justice Statistics,
ed. Alan E. Gelfand, U.S. Department of Justice, Bureau of Justice Statistics, pp. 18-22.
101. Woodworth, G.G., Louviere, J.J. (1985), “Simplified Estimation of the MNL Choice
Model using IRLS,” Contributed talk at TIMS/ORSA Marketing Science Conference at
Vanderbilt University.
102. Woodworth, G.G. (1985), “Recent Studies of Race- and Victim Effects in Capital
Sentencing,” Proceedings of the Third Workshop on Law and Justice Statistics, ed. G.G.
Woodworth, U.S. Department of Justice, Bureau of Justice Statistics, pp. 55-58.
103. Woodworth, G.G., Louviere, J.J. (1988), "Nested Multinomial Logistic Choice Models
Under Exogenous and Mixed Endogenous-Exogenous Stratification," ASA Proceedings of
the Business and Economics Statistics Section, American Statistical Association, pp. 121129.
104. Woodworth, G.G. (1989), "Trials of an Expert Witness," ASA Proceedings of the Social
Science Section, American Statistical Association, pp. 143-146.
105. Kirby, R.F., Woodworth, C.H., Woodworth, G.G., Johnson A.K., (1989), "Differential
Cardiovascular Effects of Footshock and Airpuff Stressors in Wistar-Kyoto and
Spontaneously Hypertensive Rats," Society for sNeuroscience Abstracts, 15, 274.
106. Woodworth, C.H., Kirby, R.F., Woodworth, G.G., Johnson, A.K. (1989), "Spontaneously
Hypertensive and Wistar-Kyoto Rats Show Behavioral Differences but Cardiovascular
Similarities in Tactile Startle," Society for Neuroscience Abstracts, 15, 274.
107. Woodworth, G.G., Mah, Jeng, Breiter, D. “Bayesian Experimental Design of Sequential
and Nonsequential Medical Device Trials. Contributed Talk, Joint Statistical Meeting 2005,
Minneapolis, MN
Unpublished Reports:
108. Baldus, D.C., Woodworth, G.G., Pulaski C.A. (1989). "Procedural Reform Study," InterUniversity Consortium for Political and Social Research: Criminal Justice Archive.
109. Baldus, D.C., Woodworth, G.G., Pulaski C.A. (1989). "Charging and Sentencing Study,"
Inter-University Consortium for Political and Social Research: Criminal Justice Archive.
Work in Process:
110. Woodworth, G.G., Statistical Issues in Recent Re-Analyusis of Capital Charging and
Sentencing Data, read at John Jay College, February 21, 2007.
111. Woodworth, G.G., “Bayesian Experimental Design of Sequential Clinical Trials.” To be
submitted to Statistics in Medicine, 2009.
112. Woodworth, G.G., Biostatistics II: Intermediate Bayesian Analysis, Proposal accepted
by John Wiley, December 2006, completion date May 1, 2009.

10

Exhibit F
Page 104

Professional Honors and Awards:
1987 Harry Kalven prize of the Law and Society Association (with David Baldus and Charles
Pulaski).
1987 Iowa Educational Research and Evaluation Association, annual award "For Excellence in
the Field of Educational Research and Evaluation for Best Educational Evaluation
Study," (with Larry Hedges and James Shymansky).
1991 Gustavus Myers Center for the Study of Human Rights in the United States, selection of
Equal Justice and the Death Penalty as an outstanding book on the subject of human
rights (with David Baldus and Charles Pulaski).
1996 Elected Fellow of the American Statistical Association
Service Activities
Departmental Service:
University of Iowa Statistical Consulting Center:
Founder, Associate Director, Director (1973-1980)
Acting Director (1982-3)
Member of Steering Committee and Adviser (1984-present).
University Service:
Outside member of over thirty Ph.D. dissertation committees, 1973-present.
Woodworth, G.G., Lenth, R.V.L. (1982) “A Stratified Sampling Plan for Estimating
Departmental and University-Wide Administration Effort.”
University of Iowa, Basic Mathematics Committee, January 1983-84.
Statistics Advisor to the University of Iowa Journal of Corporation Law, 1984-85.
University of Iowa, Research Council, 1984-87, Chairman 1986-87.
University House Advisory Committee, 1986-87.
Chairman, Political Science Review Committee, 1988-89.
Interdisciplinary Ph.D. Program in Applied Mathematical Sciences, 1988-present.
University of Iowa, Judicial Commission, 1979-81, 1990-93.
University of Iowa, Liberal Arts Faculty Assembly, 1985-87, 1995-6.
Professional Service:
NAACP Legal Defense and Education Fund, 1980-3: Statistical Analysis of the Georgia
Charging and Sentencing Study, Expert testimony in McCleskey vs. Zant (decided in the
U.S. Supreme Court).
ASA Law and Justice Statistics Committee, 1982-1987: Member of two methodological review
panels in Washington, DC. Organizer of two-day Workshop on Law and Justice Statistics,
August 1985.
ASA Visiting Lecturer Program, 1984-1988.
1984 Invited talk at Culver-Stockton College
1986 Invited talk at Moorhead State University
1988 Invited talk at Grinnell College

11

Exhibit F
Page 105

Invited Participant, 1984, Planning Session for Florida Capital Charging and Sentencing Study,
Florida Office of Public Defender, Richard H. Burr, Esq.
Editor, Proceedings of the Third Workshop on Law and Justice Statistics, American Statistical
Association, 1985.
Invited Panelist, 1986 Law and Society Association Annual Meeting, Panel discussion of
current state of capital sentencing research.
Invited Speaker, 1987 Seminar-Workshop on Meta-Analysis in Research, University of Puerto
Rico, San Juan, Faculty of Education, Department of Graduate Studies.
Associate Editor, Evaluation Review, 1983-1986.
Baldus, D., Woodworth, G.G., Pulaski, C.A. (1989). Oral Testimony before the U.S. Senate
Judiciary Committee (presented by D. Baldus).
Invited Participant, ASA Media Experts Program (1989).
Statistical Consultant to Special Master, David Baldus. State of New Jersey, Administrative
Office of Courts -- Proportionality Review System. 1989-present.
ASA Law and Justice Statistics Committee, second appointment, 1993-95.
Baldus, D., Woodworth, G.G. (1993), “An Iowa Death Penalty System in the 1990’s and
Beyond: What Would it Bring?” Report submitted to the Senate Judiciary Committee, Iowa
Legislature, February 24, 1993.
Baldus, D., MacQueen, J.C., Woodworth, G.G. (1993), “An Empirically-Based Methodology
for Additur/Remittitur Review and Alternative Strategies for Rationalizing Jury Verdicts,”
Report prepared for the Research Conference on Civil Justice Reform in the 1990’s.
Baldus, D.C., Woodworth G.G. (1995), “Proportionality Review and Capital Charging and
Sentencing: A Proposal for a Pilot Study,” Commonwealth of Pennsylvania, Administrative
Office of Courts.
Session Chair, Joint Statistical Meeting, Minneapolis, 2005.
Session Discussant, 2006 FDA/Industry Statistics Workshop, Washington, DC, September 2006
Invited Speaker at a one-day conference on Race and Death Penalty Research, at John Jay
College of Criminal Justice, CUNY, February 21, 2007.
Refereeing (since 1980):
1980: Journal of the American Statistical Association
1982: Journal of Educational Statistics
1983: Journal of Statistical Computation and Simulation
Annals of Mathematical Statistics
Evaluation Review (associate editor)
1984: Transportation Research
Law and Society Review
American Journal of Mathematical and Management Sciences
Journal of Educational Statistics
Evaluation Review (associate editor)
1985: Edited Proceedings of 3rd Workshop on Law and Justice Statistics
Evaluation Review (associate editor)
1986: Psychological Bulletin
National Science Foundation
Evaluation Review (associate editor)
1987: J. Amer. Statist. Assoc.

12

Exhibit F
Page 106

1988: Science (ca. 1988)
1990: Annals of Otology, Rhinology & Laryngology
American Speech-Language-Hearing Association
Macmillan Publishing Company
Survey Methodology Journal
1991: International Journal of Methods in Psychiatric Research
1993: Multivariate Behavioral Research
1994: International Journal of Methods in Psychiatric Research
1995: SIAM Review
Duxbury Press
Acta Applicandae Mathematicae
1996: American Journal of Speech-Language Pathology
1998: Duxbury Press
2001: John Wiley and Sons, Inc.
2002: Addison-Wesley
2004: J. Amer. Statist. Assoc.
2005 J. Amer. Statist. Assoc.

13

Exhibit F
Page 107

Extramural Consulting and Pro Bono Work:
American College Testing
Allergan
Beling Consultants, Moline IL
Bettendorf Iowa AEA
Coerr Environmental, Chapel Hill
Defender Association of Philadelphia
Death Penalty Information Center
Florida State Public Defender's Office
Gas Research Institute.
Hoechst Marion Roussel / Aventis
Guidant Corporation
HON Corporation
Legal Services Corporation of Iowa
Iowa State Attorney General's Office

Kaiser Aluminum
Electric Power Research Institute
NAACP Legal Defense and Education Fund
National Research Council
Supreme Court of Nebraska
Pittsburgh Plate Glass
Rhone-Poullenc
Stanford Law School
StarForms
Supreme Court of New Jersey
Vigertone Ag Products
Westinghouse Learning Corporation
WMT news department

Intramural Consulting:
I consult almost on a weekly basis with colleagues and students throughout the University,
including at one time or another (but not limited to): Audiology, Biology, Exercise Physiology,
Geology, Law, Marketing, Nursing, Otolaryngology, Physics, Psychology, Psychiatry, Science
Education, the Iowa Driving Simulator, and the National Advanced Driving Simulator.
Expert testimony / depositions:
Robert R. Lang, Esq. (Legal Services Corporation of Iowa)
1982 Ruby vs. Deere (gender discrimination)
Mark R. Schuling, Iowa Assistant Attorney General.
1984 Burlington Northern Railroad Co. vs. Gerald D. Bair, Director (taxation)
Teresa Baustian (Iowa Asst. Atty. General - Civil Rights Division)
1988 Howard vs. Van Diest Supply Co. (age discrimination)
Walter Braud, Esq.
1988 Hollars et. al. vs. Deere & Co. et. al. (gender discrimination)
Mark W. Schwickerath, Esq.
1988 Schwickerath vs. Dome Pipeline, Inc. (effects of chemical spill)
Richard Burr, Esq.
1990 Selvage vs. State of Florida (capital sentencing)
Amanda Potterfield, Esq.
1990 Reed vs. Fox Pool Corporation (product liability)
1994 State of Iowa vs. Dalley (forensic identification via DNA)
Jerry Zimmerman, Esq.
1991 George Volk Case (age discrimination)
1993 Rasmussen vs. Rockwell (age discrimination)
1994 Hans vs. Courtaulds (age discrimination)
Thomas Diehl, Esq.
1992 State of Iowa vs. William Albert Harris (jury composition)
Diane Kutzko, Esq. (Iowa State Bar Association)
1995 Consultation on the validity of the Iowa bar exam.
John Allen, Esq.
1995 Buchholz vs. Rockwell (age discrimination)
Michael M. Lindeman, Esq.
1995 Beck vs. Koehring (age discrimination)
Timothy C. Boller, Esq.

14

Exhibit F
Page 108

1995 Larh vs. Koehring (age discrimination, see refereed publications, item 68)
Thomas C. Verhulst
1995 Carr vs. J.C. Penny (racial discrimination)
J. Nick Badgerow, Esq.
1995 Zapata et. al., vs. IBP, Inc. (racial/national origin discrimination)
David J. Goldstein, Esq., Faegre and Benson, Minneapolis
1999 Payless Cashways, Inc. Partners v. Payless Cashways (age discrimination)
Catherine Ankenbarndt, Deputy First Assistant Wisconsin State Public Defender
2001 Civil commitment hearing of Keith Rivas (Prediction of Sexual Recidivism)
Michael B. McDonald, Assistant Florida Public Defender
2001 Frye hearing in re Actuarial Prediction of Sexual Recidivisim (see refereed
publications, item 69).
Greg Bal, Assistant Iowa Public Defender
2001 Civil commitment hearing of Lanny Taute (Prediction of Sexual Recidivism,
Harley C. Erbe, Esq. Walker Law Firm, Des Moines
2002 Campbell et al. v. Amana Company (Age Discrimination)
Texas State Counsel for Offenders, Huntsville, TX
2002 Daubert hearing in re Actuarial Prediction of Sexual Recidivisim
Michael H. Bloom, Assistant Wisconsin Public Defender
2002 Detention of Morris F. Clement, Forest County Case No. 00 CI 01
(Prediction of Sexual Recidivism)
Federal Court Division, Defender Association of Philadelphia, Capital Habeas Corpus Unit
2002 Petitioner Reginald Lewis (racial discrimination)
2006 Commonwealth v. Baker (jury composition)
Stephen Snyder, Esq., Grey Plant Mooty Mooty and Bennett.
2006-7 (with Jay Kadane)

15

Exhibit F
Page 109

1
2
3
4
5
6
7
8
9
10
11
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APPENDIX C

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20
21
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24
25
26
27
28

Declaration of David C. Baldus

Exhibit F
Page 110

Resume of Richard G. Newell
Principal Consulting Analysis
TOSCA, Inc.
2175 Westminster Circle
Coralville, Iowa 52241
Phone [phone]
E-Mail: [e-mail]

EXPERTISE

Accounting, Consulting, project supervision, research, systems analysis, design,
programming, testing, implementation and customer support.

HARDWARE

IBM 1400 series, 360, 370, and later mainframes, RISC6000, System/3, System/32/34.
Build and maintain IBM-compatible multi-media microcomputers.

SOFTWARE

CLIPPER, BLINKER, XBASE, COBOL, FORTRAN IV, PL/I, RPG-II, SAS, WYLBUR,
TSO, RJE, HASP, MVS, JCL, AIX, ORACLE FORMS 7.0, OS/2, DOS 6.2, WIN 3.1,
WIN95, WIN98, WINXP, FTP, TELNET, OFFICE/97 & 2000

EDUCATION

University of Iowa: B.B.A. with a major in Marketing. Graduated in Feb. 1963.
University of California at Berkeley: Graduate studies in Computer Science.

RESEARCH and STATISTICS SUPPORT
From December of 2000 to the present time: Principal Research Consultant at Tosca,
Inc. under contract with Professor David Baldus at the University of Iowa Law School.
Provider of consulting, data collection design, data entry supervision and quality control,
database design and maintenance, research, and programming using SAS in support of
several studies at the University of Iowa, City of Philadelphia, State of Nebraska, United
States Military and others.
PC PROPRIETARY SOFTWARE and HARDWARE SUPPORT
06/91-08/01

Dr. Steven Price – Wrote and maintained Dental Billing System.

08/93-07/01

Dr. John Lennarson – Wrote and maintained Dental Billing System

03/06-08/01

Consulted and assisted in PC hardware purchase, installation & upgrades for several
personal and professional clients.

EMPLOYMENT EXPERIENCE
09/86-02/00

Promoted to Consulting Staff Analyst (S21). Internal consultant, project leader and
programmer. Provided the majority of the analysis, design, programming and user
support for the following:


ACT-internal: Programming and support for Budget & Finance accounting
applications which included the following: Accounts Payable, Billing, Payroll, JobCosting, and Inventory.



ACT-resident: Proficiency Exams Program, Educational Opportunity System, Student
Aid Systems.



ACT Software packages. Responsible for all design, programming, and customer
support for ASSET, a dBASE system used by over 700 Community Colleges nationwide from 1989 through the present.

09/85

Promoted to Director of Systems Support (S21). Additional duties: Introduction and
support of IBM personal computers. Supervised a staff of 13 people.

09/83

Promoted to Assistant Director of Systems Development (S20). Additional duties: Hiring,
training, staff development. Supervised a staff of six people.

Page 1 of 2
October 27, 2009

Exhibit F
Page 111

Resume of Richard G. Newell
Principal Consulting Analysis
TOSCA, Inc.
2175 Westminster Circle
Coralville, Iowa 52241
Phone [phone]
E-Mail: [e-mail]
06/81

Senior Systems Analyst (S19), American College Testing, 2255 North Dubuque Road,
Iowa City, IA, 52243. Duties included consulting, analysis, design, programming &
testing.

12/69 - 05/81

Self-employed. DBA Newell Computer Consulting, Inc. Consulting, design, analysis,
programming, testing, hardware and software selection, for several clients in the San
Francisco Bay area with an emphasis on accounting systems design, programming, and
consulting.

09/68 - 11/69

Worked 20 hours per week as a Programmer/Analyst at U.C. Berkeley while attending
graduate school. PL/1 & IBM OS

01/64 - 09/68

IBM Corp., Buffalo, New York. Systems Engineer and Marketing Representative.
Attended more than 18 weeks of training in basic data processing design and computer
programming. Assisted in the installation of punched card and computer systems at
several customer sites. Transferred to IBM branch office in Oakland California in early
1968.

Page 2 of 2
October 27, 2009

Exhibit F
Page 112

1
2
3
4
5
6
7
8
9
10
11
12
13
APPENDIX D

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Declaration of David C. Baldus

Exhibit F
Page 113

ROBERTA GLENN
78 Rick Drive
Florence, MA 01062
(413) 585 – 9439
[e-mail]

EXPERIENCE
HABEAS CORPUS RESOURCE CENTER, San Francisco
LEGAL RESEARCH CONSULTANT
2008 – present
Consulting on the design and methodology of an empirical study conducted in the State of
California. Responsible for supervising researchers and coordinating overall document review,
data collection and data cleaning.
FEDERAL PUBLIC DEFENDER, Middle District Of Pennsylvania
LEGAL RESEARCH CONSULTANT
2007 – present
Retained to conduct research on a variety of constitutional trial issues.
NEW JERSEYANS FOR ALTERNATIVES TO THE DEATH PENALTY, Trenton
LEGAL RESEARCH CONSULTANT
2006 – 2007
Conducted a review and analysis of New Jersey’s 600 death eligible homicides using data
collected by the New Jersey Administrative Office of the Courts. Drafted and presented a
report to the New Jersey Death Penalty Study Commission on the question of whether a
significant difference exists between the crimes of defendants selected for the punishment of
death and those of defendants who receive life in prison. Testified before the Commission on
October 11, 2006.
CAPITAL DEFENDER OFFICE, New York
RESEARCH DESIGN AND METHODOLOGY 2003 – 2005
Consulted on the design and methodology of an empirical study conducted in New York State
and involving thousands of capital homicides. Coordinated the redesign of the data collection
instrument. Drafted comprehensive instructions, research protocols, and training materials for
researchers. Responsible for the design and conduct of training program for graduate students
employed as researchers. Screened thousands of cases for possible inclusion in the study and
coded data for analysis.
STATE OF CONNECTICUT
DIVISION OF PUBLIC DEFENDER SERVICES
SPECIAL PUBLIC DEFENDER
2001 – 2002
Reviewed and analyzed legal files and trial evidence for research study of racial bias in the
application of the state’s death penalty statute. Drafted case narratives and compiled reports.
Contributed to the design of the data collection instrument, coding instructions and the
analytical and research methodology.

New York State Bar: 2247229

California State Bar: 196549

Exhibit F
Page 114

GAP, INC., San Francisco
CONTRACT ATTORNEY 1998 – 2001
INTELLECTUAL PROPERTY DEPARTMENT
Negotiated and drafted agreements for personal services, marketing promotions, field
advertising, product development, web services, on-line advertising, intellectual property
buyouts, and licenses. Coordinated outside counsel advising the company on complex issues
of advertising law, tax matters and international law.
FREELANCE JOURNALIST
1997 – 2001
Reported and wrote financial and business stories for Plan Sponsor, Advisors Resource and
Global Custodian, nationally and internationally distributed magazines for employers, human
resource and benefits executives, institutional investors and financial planners.
ACCENTURE, New York
WRITER; MARKETING AND RESEARCH
1999 - 2001
Conducted interviews with consultants and executives worldwide and produced industry
research studies. Composed and edited marketing products and Internet articles for a
multinational business consulting firm.
CAROLCO PICTURES, Los Angeles
MUSIC BUSINESS AFFAIRS
1991 - 1995
Negotiated and drafted composer, soundtrack distribution and licensing agreements. Managed
music publishing catalog, collected revenue and negotiated co-publishing arrangements
worldwide. Responsible for all employment, union issues and special payments inquiries.
Supervised all areas of music production for feature films. Created and managed budgets in
excess of $3 million. Produced scoring sessions and ensured timely delivery of required
recordings.
SCHULTE ROTH & ZABEL, New York
TAX ASSOCIATE 1987 - 1990
Counseled major domestic and international corporations, partnerships and individuals in all
aspects of tax planning. Responsible for analyzing and structuring corporate acquisitions and
reorganizations, both foreign and domestic. Drafted tax disclosures in offering memoranda,
tax opinions, indemnity agreements and letters to clients describing tax consequences of
proposed transactions. Represented individual clients in both state and federal tax audit
matters.
HONORABLE WILLIAM C. CONNER, Southern District of New York
LAW CLERK
1986 - 1987
EDUCATION
UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW
J.D., cum laude, 1986
McAuliffe Honor Society
American Jurisprudence Awards: Civil Procedure, Evidence
UNIVERSITY OF CALIFORNIA, BERKELEY
A.B., Political Economy, 1979
Advisory Committee, University Art Museum

Exhibit F
Page 115

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3
4
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7
8
9
10
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APPENDIX E

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Declaration of David C. Baldus

Exhibit F
Page 116

CALIFORNIA PROJECT NUMBER:

________|________|________|________|________

CALIFORNIA HOMICIDE STUDY
DATA COLLECTION INSTRUMENT (DCI)
October 2, 2009
Defendant’s
Name: ______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI
Coder Last
Name:
________|________|________|________|________|________|________|________|________|________

Table of Contents
Introduction ................................................................................................................................................. 2
Part I. Thumbnail Sketch and Narrative Comments on Issues of Information Sufficiency Fact,
and Law – a free standing document. .................................................................................................. 4
Part IA. CDCR Identifying Information. ................................................................................................. 11
Part II. Sufficiency of the Available Information to Support Substantive Coding ................................... 13
PART III. Coder Entry of Identifying Information for the Instant Case ................................................. 17
Part IV. Charges, Allegations, and Findings on Homicide Liability, Contemporaneous Offenses
and the Presence or Absence of Special Circumstances in the Instant Case. .................................... 20
Part V. Factual Death-Eligibility Status of Cases with a M1 Conviction ................................................. 30
Part VI. Factual Death-eligibility Status of Cases with an M2 or VM Conviction. ................................. 38
Part VII. Summary of Coder Classifications on Factual-Homicide Liability and Death-Eligibility in
Three Time Periods ........................................................................................................................... 51
Page Numbers of Questions in Cross References……………………………………………………….54
Figure 1 ………………………………………………………………………………………………….55

Page 1
Exhibit F
Page 117

Introduction

Introduction
Coder Note:
(a) This document has seven parts. All of the defendants in this study were convicted between 11/08/1978
and 6/30/2002. Pre-Furman law for this study is the Georgia law deemed unconstitutional by the United
States Supreme Court law in Furman v. Georgia (1972). “Carlos Window” law refers to California law in
effect between 12/12/1983 and 10/12/1987. “2008” law refers to California law in effect on January 1,
2008.
(b) If the instant/assigned case has a M1 conviction, code Sections I-V and VII. If the instant case has a
M2 or VM conviction, code sections I-IV and VI-VII.
Part I includes a thumbnail sketch of the case with overview of Death-Eligibility Classifications and issues.
Part IA includes identifying information of the instant case from the CA Department of Corrections and
Rehabilitation (DCR), which provides coders FYI information to compare for consistency with the information
presented in the probation report for the case.
Part II addresses the sufficiency of the evidence in the instant case to support substantive coding of the deatheligibility of the case under three legal regimes.
Part III calls for coding of identifying information from the probation report in the instant case.
Part IV. This part describes charging and sentencing decision-making and outcomes in the instant case.
Part V assesses for cases with a first-degree murder conviction (M1) factual criminal liability and deatheligibility under: (1) pre-Furman law, (2) post-Furman law during the Carlos window (12/12/1983 –
10/13/1987),1 and (3) January 1, 2008 law. Under pre-Furman law, all factual common law “murder” (CLM)
cases were death-eligible, while death-eligibility for the law in place during the Carlos window and the law in
place on January 1, 2008 requires factual M1 liability and the presence of one or more statutorily defined
special circumstances.
Part VI presents a comparable analysis for cases that resulted in a second degree murder (M2) or voluntary
manslaughter (VM) conviction.
Part VII summarizes the death-eligibility classifications of the case under the three legal systems.
With respect to homicide liability, the first question is whether the case is factually murder under preFurman law, which defines “death eligibility” under the first system. For the other two legal systems you must
determine whether the case is factually M1 under CW and 2008 law, and then you must determine whether one
or more special circumstances is factually present in the case under Carlos window law and 2008 law.
In Part IV, the focus is strictly on the charges, decisions, and outcomes on liability and special
circumstances already determined in the instant case, without regard to the factual basis of the liability
1

The Carlos Window (CW) ended on October 13, 1987, when the California Supreme Court decided People v. Anderson, 43 Cal.3d
1104 (1987).

Page 2

Exhibit F
Page 118

Introduction
decision and special circumstances. The approach is different in Parts V and VI where the focus is on
factual murder- liability (common law murder, pre-Furman and M1 in the CW and 2008) and the factual
presence of special circumstances regardless of the outcome of the case under CW and 2008 law. The one
large exception to this approach in Parts V and VI is the controlling fact finding rule, which with a jury
nullification exception, controls regardless of the facts of the case. Thus, to the extent that the homicide
liability is not determined by a controlling fact finding, the test throughout this document is whether the
facts are legally sufficient to support a factual finding of murder of M1 liability.2 The same “legal
sufficiency” rule holds with respect to the presence of special circumstances under post-Furman law.
PAGE NUMBERS OF QUESTIONS USED IN CROSS REFERENCES ARE ON PAGE 55.
Your judgments in Parts V and VI, therefore, will be informed by the controlling findings of fact of
juries and judges and M1 guilty pleas of defendants reported in the probation report for the case.3 In the
absence of controlling findings of fact on liability and special circumstances, the question is whether the
evidence is legally sufficient to support a finding of murder or M1 liability and the presence of special
circumstances without regard to the actual conviction or whether special circumstances were found to be true or
not true in the case.
When a case presents issues of law or fact that limit your ability to make the required classifications
with confidence, note those issues with specificity in Part I Q.85. Your thumbnail narrative description of the
case in Part I of this document should also highlight any legal and factual issues that you note in Part VII below.
Question (Q.) numbers are on the left side of the page in bold font. Your answers for each question
should be entered by circling the appropriate answer on the right side of the page or by checking the appropriate
answer when the questions and answers are presented in a table. If you identify legal issues in the case on
which you believe we need legal advice from CA counsel, note them in Part I Q.86.

2

The issue of “legal sufficiency” applicable throughout this DCI is whether in the appeal from an M1 finding of fact by a jury or
court, the evidence in the “whole record” would convince a California appellate court that “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” People v. Sanchez, 906 P.2d 1129, 1148 (Cal. Sup. Ct. 1996) (quoting
People v. Davis, 41 Cal. Rptr.2d 826, 896 (Cal. Sup. Ct. 1995)). The issue is not whether the coder is convinced beyond a reasonable
doubt that the element at issue exists.
3

When a judicial opinion for the case is available it will be included in the file. Some cases also include trial court documents
provided by counsel that fill in gaps on procedural aspects of the case that were not reported in the probation report for the case.

Page 3

Exhibit F
Page 119

I. DCR Identifying Information

Part I. Thumbnail Sketch and Narrative Comments on Issues of Information Sufficiency
Fact, and Law – a free standing document.
A. Introduction
The most important single task in coding the DCI is the preparation of a thumbnail sketch for the case
with, when applicable, narrative comments on issues of fact, law, and information insufficiency. This is a free
standing WORD document for each case that you will send separately or in groups via Hushmail to
[e-mail], with CC to [e-mail] and [e-mail] or deliver
to Lisa Lowenberg on a USB drive in a manila envelope according to the Narrative Protocol in the Coding
Manual. Whenever you send a Hushmail message to participants in the project, also send a regular email
advising the recipient that a Hushmail message has also been sent to them.
THE FORMAT FOR YOUR ANSWERS TO THESE PART I QUESTIONS IS PRESENTED IN
THE LAST THREE PAGES OF THIS PART.
The thumbnail provides an overview of the facts, procedure, and death-eligibility status of the case. It is
used by the investigators to identify coding errors and issues. It also provides us with the capacity to develop
legal and factual issues for which we can obtain advice from counsel and a special advisory panel in CA. The
thumbnails are our window on the world. They may be the only raw material from this study that the court will
see. For all of these reasons, it is essential that coders bring utmost precision and consistency to their
preparation of the thumbnails.
The thumbnails permit us to review quickly one another’s coding. In the substantive analysis, the
thumbnails enable us to define factually or procedurally similar cases for qualitative analysis. They also enable
us to present qualitative analyses that are more accessible to judges and lawyers than the results of statistical
analyses.
If the case does not qualify for substantive death-eligibility coding because of information insufficiency
identified in Part II, indicate that fact at the outset of the thumbnail and further indicate in italics within the
thumbnail what is missing and if the missing information is procedural indicate what is needed to support
coding. Also indicate the reason in detail in an INFORMATION INSUFFICIENCY note (Q.81A) following
the thumbnail sketch in your answer to this Part I.
B. Elements of the Thumbnail
For cases in which there is sufficient information to code the full DCI, these are the elements of the
thumbnail and the order in which they should be presented:
1. Project number, e.g. 450;
2. Defendant’s last name, first name, and middle initial;
3. Facts of the crime with the date, defendant’s age, sex, and the acts bearing on homicide liability and the
presence of special circumstances, e.g., “D, a 20-yr. old male, intentionally shot and killed the V in the
course of an armed robbery.” If the facts that implicate murder and M1 liability and the presence of special
circumstances are not readily apparent, as they are in the just stated example, add the factual detail that will
support your “death eligibility” classifications in para. 6 below. Include facts that cut in favor of and against
a finding of the factual presence of murder and M1 liability and special circumstances. Be inclined to
include more rather than less factual information that bears on the murder and M1 and S.C. issues. Do not
Page 4

Exhibit F
Page 120

I. DCR Identifying Information
include the race or ethnicity of the defendant or victims in the thumbnail unless it implicates a M1 predicate
of a special circumstance, which should also be put in context in the facts of the thumbnail. The
abbreviations are listed in Section C below.
4. The charges and outcomes (trial or guilty plea) for the homicide and any contemporaneous offenses that
implicate the M1 predicates and the presence of special circumstances, with CFF status on M1 and special
circumstance findings indicated, e.g., “Charge: 187 murder, robbery (211), and SC 17A robbery; Bench [or
Jury]: M1 (CFF), robbery (211); SC 17A robbery (CFF);” If reported in the probation report, indicate in
parentheses the code section number of contemporaneous felony charges and convictions that implicate M1
liability. Include the abbreviated code section number of special circumstances charged with the factual
basis of each SC indicated, e.g. SC 17A robbery. A common charge is murder generally under PC187.
State that charge as “Charge: 187 murder.”
5. Sentence, if known, e.g., “15 yrs.-life or LWOP”; Enter “Sent: Unk,” if the sentence is unknown;
6. Death-eligibility (DE) status for pre-Furman, CW, and 2008 law. For each time period report the basis of
your death eligibility classification.
(a) For the pre-Furman period if there is a CFF on murder liability report “DE: PF- yes (murder -CFF).” If
there is no CFF on murder liability, indicate the strength of the factual basis for M1 liability, e.g., “DE: PFyes (clear murder status),” “DE: PF-close call (on murder status),” or “DE: PF-no (no murder status)” when
M1 status is clearly not present factually. This would be the case when there is a VM CFF or there is no
factual basis at all for a claim of murder factual status. If there is a close call on murder liability, explain the
basis for the close call in Q. 85.
(b) Under CW and 2008 law, use the approach to M1 liability illustrated below with reference to “M1”
instead of murder. Also, apply the following approach to special circumstances (SC), which will report an
abbreviated section number for the SC (the foil numbers following Q.53) and a brief factual description of
relevant special circumstances. Identify all SC found or present in the case.
(1) If there is an allegation of a SC and a finding or admission that it is present/true or not present/true, so
indicate with a CFF designation, e.g. (SC17A-robbery-not present CFF), (SC17A-robbery-present CFF).
(2) If there is no CFF on a SC, and no facts supporting the presence of a SC, report “(no SC present).” If the
presence of the SC is a close call, report that fact, e.g., (close call SC15-lying in wait).
(3) If the SC is clearly present, report e.g., (clear SC15-lying in wait). Explain all close calls in Q. 85.
(4) If SC are alleged and found present or not present, also report SC that were present but not alleged.
Report those “omitted” SC in the allegations charge section of the thumbnail, e.g. (SC 17A – robbery –
present but not alleged.)
(c) Here are some examples with both M1 liability and SC reported under CW and 2008 law:
1. CW-yes: (clear M1 status) and (clear SC 17A-robbery);
2. CW-no: (M1-CFF) and (SC 17A-robbery-not present CFF);
3. CW-close call: (close call M1 status) and (clear SC 17A-robbery);
4. 2008-no: (M1-CFF) and (no SC present);
Page 5

Exhibit F
Page 121

I. DCR Identifying Information

5. 2008-no: (M1-CFF) and (SC 15-lying in wait-not present CFF);
6. 2008-yes: (M1-CFF) and (SC15-lying in wait-present CFF);
7. 2008-yes: (clear M1 status) and (clear SC17A-robbery);
8. CW-close call: (close call M1 status) and (clear SC17A-robbery);
9. CW-close call: (M1-CFF) and (close call SC17A-robbery);
(Note the colon following the CW and 2008 death eligibility classifications, which are followed by the
two elements (M1 and SC) underlying those classifications)
(d) Thus, the death eligibility classifications at the end of the thumbnail might read as follows:
; DE: PF-yes (clear murder status); CW-yes: (clear M1 status) and (clear SC 17A- robbery); 2008-yes:
(clear M1 status) and (clear SC 17A-robbery)
; DE: PF-no (no murder status); CW-no: (no M1 status) and (no SC present); 2008-no: (no M1 status)
and (clear SC 17A-robbery)
(Note the semicolon between the death eligibility classifications for each time period.)
7. Coder last name: “Coder-Jones.”
Please note that each major section (1-7 above) is followed by a semicolon and sub-categories are
separated with colons and others with a small dash).
C. Abbreviations Used in the Thumbnail
Use in the thumbnail the abbreviations listed below. Omit periods unless specifically indicated.
CFF: controlling fact finding
Co-perp: co-perpetrator
Ct.: count (w/a period)
CW: Carlos Window
D: defendant
DE: death-eligible
FF: fact finder
M1: first degree murder
M2: second degree murder
NDV: Non-deceased victim
PF: pre-Furman
PR: Probation Report
Sent: sentence
Unk: unknown
V: victim
V1: the first victim
Page 6

Exhibit F
Page 122

I. DCR Identifying Information
V2: the second victim
V3: the third victim
VM: voluntary manslaughter
Yr.: year (w/a period)
D. Thumbnail Examples
(Check each thumbnail you do against these models)
1.

Here are thumbnail examples when the coder believes there is enough information in the file to support
full coding.
9737; Greenwood, George Gabriel; On 7/4/81, D, an 18-yr. old male, killed the V with a blow to the
head with his fist and removed the V’s wallet; Charge: 187 murder, robbery (211), and SC 17A robbery;
Bench: M1 (CFF), robbery (211), and SC 17A robbery present (CFF); Sent: Unk; DE: PF-yes (murderCFF), CW-yes: (M1-CFF) and (17A-robbery-present CFF); 2008-yes: (M1-CFF) and (17A-robberypresent CFF); Coder- Ali
618; Alvarez, Ramon Blancas; On 11/11/84, D, a 22-yr. old male, shot V 4 times and killed the V for
unknown reasons; Charge: 187 murder; Plea: VM (No CFF); Sent: Unk; DE: PF-no (no murder status);
CW-no: (no M1 status) and (no SC present); 2008-no: (no M1 status) and (no SC present): CoderMagana
402; Alexander, Shelby Darlene; On 11/14/80, D, an 18-yr. old female, caused the death of her 19month old child by physical abuse and maltreatment; Charge: 187 murder; Plea: VM (no CFF); Sent:
Unk; DE: PF-no (no murder status); CW-no: (no M1 status) and (no SC present); 2008: (no M1 status)
and (no SC present); Coder-Ping.

2.

For cases with insufficient procedural information to support coding of the case (Q.30 = 0, Q.32 = 0, or
Q.33 = 0), indicate with underline at the outset whether procedural or substantive information is missing,
state as much as is known in the thumbnail but also indicate in Q81A exactly what is missing that
impedes full coding, e.g., insufficient information to apply the CFF rule or to code the substance of the
offense. If the case involves missing procedural information, indicate the county of prosecution and the
local court case number to assist counsel in locating the missing procedural information. The following
are examples illustrating insufficiency of procedural and substantive information:
a.

Insufficient procedural information; 9737; Greenwood, George Gabriel; On 7/4/81, D, an 18-year
old male, killed the V with a blow to the head with his fist and removed the V’s wallet; Charge: 187
murder, robbery (211) and SC 190.2 (a) (17A) (robbery); M2 conviction but the CFF is Unk. To
apply the CFF, coding requires information on whether the M2 conviction is based on a guilty plea
or a trial court conviction; Los Angeles County, Docket # 23-4587.

b. Insufficient substantive information; 9738; Brown, Peter; On 7/4/81, D, an 18-yr. old male, killed
the V; Charge: 187 murder; Plea: M2 the probation report lacks sufficient information on the facts
of the crime to support substantive coding of the death-eligibility of the case, Los Angeles County,
Docket #33-5481.

Page 7

Exhibit F
Page 123

I. DCR Identifying Information
E. Instructions on Writing the Thumbnail
1. Indicate the penal code number of contemporaneous felonies if they are reported in the probation report or
they are well known and involve no ambiguities, e.g., robbery (211). However, leave out the word “PC,”
which means penal code.
2. Indicate the abbreviated penal code number of SCs in both charge and conviction sections of the thumbnail
with the factual basis of the SC in parentheses in the charging section, e.g., SC 17A robbery present (CFF).
If the SC section number is not reported in the probation report, but if it is clear what SC applies, look it up
and include the code foil number in the thumbnail. If there is any ambiguity about which SC applies, report
only what is stated in the probation report.
3. A defendant cannot be convicted of 187 PC murder. However, it is often the charge. Murder convictions
are for M1 or M2. The defendant may also be convicted of VM. Reporting a conviction as “187 murder” is
not authorized.
4. Use the abbreviations, e.g. M1, M2, VM, etc that are included in the Section C above.
5. If a SC is factually clearly present (but not charged, found or stipulated to), include the facts of the SC in the
factual section of the narrative summary. Also include in the allegation section the abbreviated section
number and the factual basis of the SC and “but not alleged:, e.g. “SC17A Robbery present but not alleged.”
[This is a new Coding Rule.].
6. Put down sex of the victim in the thumbnail if it is known and not otherwise indicated. For example, “D
killed his girlfriend” is enough to indicate the victim’s sex.
7. Under pre-Furman law, murder liability establishes death-eligibility. Under CW and 2008 law, deatheligibility requires M1 liability and the factual presence of one or more special circumstances.
8. If a SC charge was dismissed, indicate how it was dismissed and by whom. For example, the “SC was
dismissed as part of a plea bargain” or the “SC was dismissed by the court.”
9. If the exact date of the offense is unknown, use “on or about” to indicate approximate date or “in March” if
only the month is known, e.g. “On or about 8/10/85” or “In August 1985.”
10. Do not use the term “co-defendant,” instead use “co-perpetrator,” the abbreviation of which is “Co-perp.”
11. The term “victim” is only for deceased victims. Otherwise, use the term “non-deceased victims” (NDV).
For example, “D beat V1 and V2 to death and wounded three NDV.”
12. The CFF rule only applies to the grade of homicidal liability and SCs. It does not apply to other felonies
and special allegations.
13. For all homicide and SC outcomes indicate the CFF status, e.g. M1 (CFF); M2 (no CFF); M2 (CFF/Unk),
190.2(a)(17A) (CFF). All findings that a SC is present or not present by a jury or judge are a CFF. A
dismissal of a SC by a court for evidence insufficiency is also a CFF. However, a dismissal of a SC by a
prosecutor as part of a plea bargain is not a CFF.

Page 8

Exhibit F
Page 124

I. DCR Identifying Information
Template form for your answers to Part I. You should have a copy of this template with the file name
PPPP_THUMBNAIL_AND_NARRATIVE_RESPONSE.DOC.” Open template file with Microsoft WORD and
type in the information requested below. (See below for an example of the final product and a template you can
adapt for your use.)
1. Type The Thumbnail here:
2. If after typing the Thumbnail you believe there is insufficient evidence to support reliable coding
advance to Part II (Information insufficiency) code Q.29 through Q.35, as applicable. At that point cease
coding the DCI and under Q.81A identify with specificity the nature of the income insufficiency problem
and what if anything can be done to cure it, e.g., obtain information on the decision maker in the case –
jury, prosecutor, or judge. Where applicable, explain the problem in terms of the categories defined in
Q.29, Q.31, Q.32, Q.34 and Q.35 in Part II. Also, note at the beginning of the thumbnail “Insufficient
Procedural Information” or “Insufficient Substantive Information,” as the case may be, as is illustrated
in para. 2.a. and 2.b.
Save the DOC file by substituting the Project # for PPPP in the file name
“PPPP_THUMBNAIL_AND_NARRATIVE_RESPONSE.DOC”.
3. If you believe there is sufficient evidence to support reliable coding, CONTINUE entering information
on this DCI form by answering questions, beginning with Q.16, as applicable. When you have completed
Q.16 - Q.81 on the DCI form, resume answering the following questions in the template file, starting with
question number 81A.
Page numbers for Q.75 – Q.88 are found in the ‘Cross-reference of Questions and/or reference and Page
numbers’ at the end of the DCI.
Q.81A. Information insufficiency
Q.82. Murder and M1 liability differences under pre-Furman, CW, and 2008 law, i.e., if the answers to Q. 754,
Q. 765, or Q. 796 differ, state the reason(s) for the coding differences.
Q.83. Special circumstances differences under CW and 2008 law, i.e., if the answers to Q. 777 and Q. 808
differ, state the reason(s) for the coding differences.
Q.84. Death-eligibility differences – If the answers to Q. 759, Q. 7810 or Q. 8111 differ, state the reason(s) for
the coding differences.
Q.85. Ambiguities and close calls. Summarize and explain factual and legal ambiguities and issues and “close
calls” that complicated and/or impeded coding and/or required “close call” classifications.
Q.86. Legal Issues. State legal issues on which you believe we need advice from CA counsel.

4

Factual murder liability under pre-Furman law
Factual M1 liability under CW law
6
Factual M1 liability under 2008 law
7
SC under CW law
8
SC under 2008 law
9
Pre-Furman death eligibility
10
CW law death eligibility
11
2008 law death eligibility
5

Page 9

Exhibit F
Page 125

I. DCR Identifying Information
Q.87 Special Circumstances not coded in the DCI. Use this section to list special circumstances that are
factually present in VM or M2 cases in which the VM or M2 conviction is based on a CFF. Identify them in
abbreviated form as noted in paragraph 6 above, e.g. (SC17A – Robbery present).
Q.88. Other Detail other facts or questions you believe require further consideration by the research director.
Q. 89 Date coding completed: 00/00/0000. See below for an example of a thumbnail sketch template.
4. When you have completed this Template save it by substituting the Project # for PPPP in the file name
“PPPP_THUMBNAIL_AND_NARRITIVE_RESPONSE.DOC” and Hushmail it to [e-mail], with
CC to [e-mail] and [e-mail]. The subject for your message should

be CA Part I.
Coder’s Name
Date
CA Homicide Study – U. of Iowa College of Law
“0252_THUMBNAIL_AND_NARRATIVE_RESPONSES.DOC”
12

1. Type The Thumbnail here:
0252; Guy, Bad; On 8/8/12, D, a 27-yr. male killed V by dropping a giant anvil on his head from a high window.
There was evidence that he had ordered the anvil from Acme Services, specializing in selling murder weapons.
Many prior threats passed between the D and V, who had been feuding a long time. A small child in the
apartment witnessed D practicing his aim with the anvil and muttering dark opinions of V; Charge: 187 murder;
Plea: VM (no CFF); Sent: Unk; DE: PF-yes (clear murder status); CW-yes: (clear M1 status) and (clear SC-15
lying in wait); 2008-yes: (clear M1 status) and (clear SC-15 lying in wait); Coder-Glenn.
2. If after typing the Thumbnail you believe there is insufficient evidence to support reliable coding,
follow the instructions in Part I of the DCI.
For Questions Q.81 through Q.86 below omit the question if the answer is “NONE”.
Q.81A. Information insufficiency
Q.82. Murder and M1 Liability. Explain any differences in your coding of factual murder and M1 liability under preFurmam (Q.75), CW (Q.76), and 2008 (Q.79) law.
Q.83. Special Circumstances. Explain any differences in your coding of the factual presence of special circumstances
under CW (Q.77) and 2008 (Q. 80) law.
Q.84. Death Eligibility. Explain any differences in your coding of the factual death eligibility of the case under preFurman (Q.75), CW (Q.78), and 2008 (Q.81) law.
Q.85. Ambiguities & Close Calls. Summarize and explain any factual and/or legal ambiguities and issues that
complicated or impeded your coding and/or required “close call” classifications.
Q.86. Legal Issues. State any legal issues on which you believe we need advice from CA counsel.
There could be a question about whether an anvil is a deadly weapon, even though purchased at a purveyor of
murder weapons.

12

For the thumbnail’s format, content, and abbreviations, consult the Coding Protocol, Part II, Section E, pp. 9-12.

Page 10

Exhibit F
Page 126

I. DCR Identifying Information
Q. 87. Special Circumstances not coded in the DCI. Use this section to list special circumstances that are factually present
in VM or M2 cases in which the VM or M2 conviction is based on a CFF. Identify them in abbreviated form as noted in
paragraph 6 above, e.g. (SC17A – Robbery present).
Q. 88. Other. Detail other facts or questions you believe require further consideration by the research director.

NOTICE THAT THE INSTRUCTIONS YOU DON’T NEED HAVE BEEN DELETED, LEAVING ONLY THE
MATERIAL THE RESEARCHERS NEED.
Bold your notes under Q.81A – Q.88. ALSO, THE CASE NUMBER SHOULD ALWAYS HAVE 4 DIGITS!

Part IA. CDCR Identifying Information.
Case Identifying Information and Status in the Study Obtained From the CA Department of Corrections
and Rehabilitation (CDCR). This section requires no coding by the coder. Specifically a “cover sheet” for
Q.1 through Q.15 and Q.21 through Q.28 will be printed for each case assigned to you. You should compare
the data on this sheet to the CDCR identifying information and the identifying information reported for the case
in the probation report. If you find data that is different and inconsistent please write a comment on the
cover sheet describing the difference and alert your coding supervisor.
4. CASE – County court case number
6. CDC – California Department of Corrections and Rehabilitation case number
7. OFF_YR – Year of offense
8. OFNS_DT – Date of the offense
9. SEN_DT – Date of sentence in the case
10. TIME_4CW – The applicable law at the date of the offense
1 = Pre-Carlos window – 01/01/1978 – 12/11/1983
2 = Carlos window – 12/12/1983 – 10/12/1987
3 = Post-Carlos window (A) – 10/13/1987 – 12/31/1992
4 = Post-Carlos window (B) – 01/01/1993 – 06/30/2002
11. COUNTY_NAME – County of conviction (Abbreviation)
12. COUNTY_NUM – County of conviction (Number)
13. SEX – Defendant’s gender
1 = Male
2 = Female
14. D_AGE – Defendant’s age at time of the offense
15. CONVICT – Crime of conviction reported by the Department of Corrections and Rehabilitation
1 = M1
2 = M2
3 = VM
4 = Murder, but degree unspecified (e.g. PC 187)
9 = Unknown
Page 11

Exhibit F
Page 127

I. Sample Information & Data Sources
21. Stratum location/number of the case in the final sample
22. The number of cases in the defendant’s stratum in the final sample
23. Is the case in the pilot study sample randomly selected from the 27,928 case universe?
1 = Yes, in the original 119 case pilot sample, not replaced, and included in the 1820 case final
sample
2 = Yes, although not included in the original sample it was added later to replace a deleted case
3 = No, not selected originally and not used as a replacement case in the pilot sample
4 = No, although originally selected for the pilot it was deleted from the pilot sample b/c of
missing information
9 = Unknown
24. Is the case in the 1820 case final sample randomly selected from the 5,300 case candidate sample?
1= Yes, in the original 1820 case final sample and not replaced by a case from the pilot sample
2 = Yes originally but it was replaced by a case from the pilot sample
3 = Yes, although not included in the original final sample it was added later to replace a deleted
case
4 = No, not selected originally and not used as a replacement case in the final sample
5 = No, although originally selected it was deleted from the final sample b/c of missing
information
9 = Unknown
25. Was the case in the 5300 case candidate sample randomly selected from the 27,928 case universe?
1 = Yes, it is in both the 5300 candidate sample and the 1820 original final sample.
2 = Yes, it is in the 5300 case candidate sample but was not included in the original 1820 case
final sample and was not used as a replacement in the final sample and/or the pilot sample.
3 = Yes, it was in the original 5300 case candidate sample but not in the original 1820 case final
sample, and was used as a replacement in the final sample and/or the pilot sample.
4 = No, not originally selected for the candidate sample.
9 = Unknown
26. Probation Report Status
1 = Requested from the State
2 = Received in IA
3 = Not found by the State and the case was deleted from the sample and the case for want of a
probation report or equivalent information such as a judicial opinion
4 = Not found by State and a substitute was produced by the State and received in IA
5 = Case was deleted from the study
9 = Status unknown
27. California Judicial Opinion (s)
1 = Search requested
2 = Search and none located
3 = Opinion located and added to the file
9 = Status unknown

Page 12

Exhibit F
Page 128

III. Information Sufficiency

28. COUNSEL_SUPP
1 = Procedural information requested of counsel
2 = Procedural information provided by counsel
3 = Request not fulfilled
8 = No missing information or request of counsel
9 = Unknown

Part II. Sufficiency of the Available Information to Support Substantive Coding
A. Introduction
1. Factual determinations based on controlling findings of fact.
The first question is whether there is sufficient procedural information in the file13 to determine whether
homicide liability and/or special circumstances in the instant case were determined by a controlling finding of
fact.
A key distinction is the form of murder liability that is required to support death eligibility during the
three periods of the study. Pre-Furman Georgia law deemed common law murder the sole basis for death
eligibility, while CW and 2008 law required M1 liability and the presence of a special circumstance.
With one major exception, a M1 conviction in the instant case (by a guilty plea admission of the
defendant or a M1 conviction in a bench or jury trial) is considered to have been determined by a controlling
fact finding that is applied across all three legal regimes. However, this rule is valid only when the M1
predicate in the instant case was applicable to support murder pre-Furman and M1 for CW and 2008 law. For
example, the assumption of relevance across all three legal regimes does not apply when the M1 conviction in
the instant case is based on an M1 predicate that was not applicable under CW or pre-Furman law. Such an M1
conviction would be a CFF only under 2008 law and it would not be a CFF under pre-Furman or CW law.
Moreover, if such an M1 predicate was not in effect for murder pre-Furman or for M1 during the CW, it has no
relevance to that law and cannot be coded “factually present” under pre-Furman law or CW law, as the case
may be. The same principle holds for an M1 predicate applied under CW law that was not in effect preFurman. Such an M1 predicate has no relevance to the coding of a pre-Furman case in the absence of another
murder predicate under pre-Furman law.
This same principle applies when in the instant case a fact finder finds a special circumstance present or
the defendant stipulates to its presence and SC found present or stipulated to in the instant case was not in effect
during the CW. In that situation, the CFF for that SC applies only under 2008 law and has no relevance under
CW law. For this reason it cannot be found factually present under CW law.
Because the applicability of M1 predicates and special circumstances in M1 conviction cases
depends on the date of the offense and the law in place on that date, it is crucial in such cases (a) to
determine the extent to which relevant M1 predicates and SC in the instant case were applicable under
13

For this purpose, the file consists of information in the probation report, judicial opinions when available, and CA Dept. of
Corrections and Rehabilitations data on the character of the homicide of conviction when the conviction information is not available in
the probation report and there is no judicial opinion in the file with that information.

Page 13

Exhibit F
Page 129

III. Information Sufficiency
all three legal regimes, and (b) if they were not, to adjust accordingly your assessment of the extent to
which a CFF in the instant case can be considered applicable during earlier legal regimes.
These issues of generalizability across the three legal regimes arise with respect to the following
questions:
1. The applicability of the CFF rule for M1 and murder factual liability when there was an M1
conviction in the instant case is answered in Q.75, Q.76, and Q.79.
2. The applicability of the CFF rule for the factual presence or absence of SCs when a fact finder
found a SC present or absent in the instant case is answered in Q.60-Q.61.
3. The applicability of the CFF rule for M2 and VM factual liability when there is a murder
charge and a fact finder convicts the defendant guilty of M2 or VM in the instant case is answered in
Q.62.
For M2 and VM convictions, a determination of whether liability is determined by a controlling fact
finding requires three pieces of information: (1) the homicide charge (s) filed, (2) the homicide crime of
conviction, and (3) the identity of the decision maker who determined the grade of homicide liability.
To determine whether the presence or absence of a special circumstance (SC) is determined by a
controlling fact finding requires a SC allegation in a M1 or 187 PC Murder charge and three additional pieces of
information: (1) whether the SC allegation was withdrawn by the state,14 (2) whether it was stipulated to or
admitted by the defendant,15 and (3) if it was not withdrawn or admitted by the defendant, who and in what
procedural context, determined the outcome of the allegation(s), e.g., accepted or rejected as true by a fact
finder (in a bench or jury trial) or rejected by the court for insufficiency of the evidence supporting the SC.16
When the available procedural information is insufficient to determine whether or not M1 liability and
special circumstances in the instant case are determined by a controlling finding of fact, we will seek from
counsel the information needed to make that assessment.

14

This is not a controlling fact finding.

15

This is a controlling fact finding.

16
These examples are controlling fact findings. There is a broad spectrum in the degree to which homicide liability and special
circumstances are determined by controlling fact findings. At one extreme are cases that advance to a penalty trial following a jury
finding of M1 liability and the presence of one or more special circumstances present in the case. In these cases all of the relevant
facts including the defendant’s death-eligibility are determined by a controlling finding of fact and the coder’s job is limited to
documenting the decision making process and the basis of the jury’s decisions. Such cases call for no judgments by the coders of
whether or not the case is factually M1 and whether or not a special circumstance is present in the case.

At the other extreme are cases charged with M2 or VM which result in a guilty plea by the defendant. In such cases there are no
controlling fact findings and the task for the coder is to determine if the case was factually M1 and whether one or more special
circumstances was factually present. There also are no controlling findings of fact on a SC when the case is charged with M2 or VM.
In the absence of a controlling finding of fact on the presence or absence of SC, the coder needs to determine if the information
reported in the probation report is sufficient to determine whether or not the SC(s) were present in the case, under the legal sufficiency
standard in note 2 supra.

Page 14

Exhibit F
Page 130

III. Information Sufficiency
2. Sufficiency of information to determine factual M1 liability and the presence of special circumstances
that are not based on controlling findings of fact
When liability and special circumstances are not determined by controlling findings of fact, it is
necessary to assess whether the information in the file is sufficient to determine the factual grade of homicide
culpability in the case, and whether SC(s) are factually present. With respect to homicide liability, the coder’s
information sufficiency judgments are reported in Q.34 for M2 and VM cases. With respect to special
circumstances, the coder’s judgments are reported in Q.31 for M1 conviction and factual M1 cases and Q.35 for
M2 and VM cases. When it is ultimately determined that a case lacks sufficient information to support reliable
coding on either of these issues it will be deleted from the study and replaced with a substitute case randomly
selected from the same sampling strata as the deleted case.
For all these factually present questions, the standard is the “legal sufficiency” test quoted in note 2,
supra.
A. M1 Conviction Cases
Q.29-Q.31. If the case is a M1 conviction code Q.29-Q.31. (If the case is a M2 or VM conviction omit Q.29Q.31 and proceed to Q.32.)
29. Is there sufficient information in the probation report to apply the controlling fact-finding (CFF) on the
presence or absence of special circumstances, i.e., that (a) it applies and the CFF rule determines that a SC is or
is not present in the case, or (b) that there is no CFF on the issue in the case and the question is whether a SC is
factually present in the case?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

No17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

0

If the answer to Q.29 is No, terminate coding and explain in the INFORMATION INSUFFICIENCY comment
following your thumbnail sketch why there is insufficient information to answer this question Yes.
30. If your answer to Q29 is Yes (i.e. there is sufficient information to apply the CFF), is the SC issue
determined by a CFF?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

1

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

0

31. If your answer to Q. 30 is No, does the probation report have sufficient information to determine
the factual presence or absence of special circumstances in the case?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

1

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

0

17

This condition would exist when a SC is alleged and dismissed but it is unknown whether it was dismissed by the court for lack of
evidence or the prosecutor in a plea bargain.

Page 15

Exhibit F
Page 131

III. Information Sufficiency
If your answer to 31 = No terminate coding and explain in your INFORMATION INSUFFICIENCY comment
following your thumbnail sketch exactly what is missing and why it impedes your ability to code this question =
Yes.
B. M2 and VM conviction cases
Q32-Q35. If the case has a M2 or VM conviction code Q.32 – Q.35. If the case has an M1 conviction, omit
Q.32-35 and proceed to the “Coder Direction” following Q.35.
32. Is there sufficient information in the probation report to apply the controlling fact-finding (CFF) on the
issue of M1 factual liability, i.e., that (a) it applies and the CFF rule determines homicide liability or (b) that
there is no CFF on liability in the case and the question is whether the case is factually murder or M1?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

1

No18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

0

If your answer to Q32 = 0 (No), in your INFORMATION INSUFFICIENCY comment following
your thumbnail sketch indicate exactly what information is missing and why it impedes your ability to
code this question and determine if the case is death eligible under the three legal regimes.
33. Is there a controlling fact finding on the grade of homicide liability?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

1

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

0

Not Applicable b/c there is insufficient information to apply the CFF rule, i.e., Q. 32 = 0 (No) . .

8

Unknown ……………………………………………………………………………………

9

34. If your answer to Q.33 = No or Unknown, does the probation report have sufficient information to
determine if the case is factually murder or M1 under the three legal regimes?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

1

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

0

Not Applicable b/c Q. 33 = 1 (Yes) . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

8

If Q. 34 = No, explain in your INFORMATION INSUFFICIENCY comment following your
thumbnail sketch exactly what is missing and why it impedes your ability to code this question =1.
35. If your answer to Q. 34 = Yes, does the probation report have sufficient information to determine the
presence or absence of special circumstances in the case? (circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . .

1

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

0

Not Applicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

8

18
This condition would exist, for example, it the homicide charge is 187 PC murder and the conviction is M2 but it is unknown if the
conviction is based on a jury or bench trial verdict or a plea bargain.

Page 16

Exhibit F
Page 132

III. Information Sufficiency

If Q. 35 = No, explain in your INFORMATION INSUFFICIENCY comment following your thumbnail
sketch, Q.81A, exactly what is missing and why it impedes your ability to code this question = Yes````.
(Questions 36 through 39 are reserved.)

Part III. Coder Entry of Identifying Information for the Instant Case19 
16.

The defendant’s race as reported in the probation report:
(circle ONE best answer)
Black/African American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

White/Caucasian

2

...............................................................

Asian American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Pacific Islander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Latino/Hispanic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Native American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Unknown

9

.....................................................................

(If there are more than three decedent victims, code the first three named in the Probation report.)
16A.

Victim #1 Name

______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI

16B. Victim #2 Name
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI

16C. Victim #3 Name
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI

19

Substantive coding for the instant case commences in this Part.

Page 17

Exhibit F
Page 133

III. Coder Entry of Identifying Information

A
Vic1

B
Vic2

C
Vic3

Black/African American . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

1

1

White/Caucasian

....................................

2

2

2

Asian American

....................................

3

3

3

Pacific Islander

....................................

4

4

4

Latino/Hispanic

....................................

5

5

5

Native American

....................................

6

6

6

Other

....................................

7

7

7

Unknown

....................................

9

9

9

16D. Victim Race (circle ONE best answer for each victim)

17. Defendant/victim relationship20 (circle ONE best answer for victim#1)
Intimates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

Other family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Friend/acquaintance/business relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Strangers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Potential antagonists in an urban youth-culture setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

18. Defendant’s role in crime as the actual killer or an aider/abettor (circle ONE best answer for victim#1)
Def. was the actual killer w/o no aiders/abettors

..........................

Def. was the actual killer with one or more aiders/abettors

1

.......................

2

Def. was an aider/abettor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Def. was the actual killer but unknown if he had aiders/abettors . . . . . . . . . . . . . . . . . . . .

4

Unknown if def. was the actual killer or an aider/abettor

9

20

................... ....

If the case involves multiple victims, code the one that best defines the salient features of the crime(s) resulting in the deaths(s) of
the victims(s) for the purpose of identifying similarly situated cases.

Page 18

Exhibit F
Page 134

III. Coder Entry of Identifying Information

19. Co-perpetrators in the homicide – Enter up to three with the most culpable crime of conviction, if known,
i.e., M1, M2, VM. If unknown, enter those that appear to have the highest level of criminal culpability on the
basis of mental culpability, the harm caused and responsibility for it and character such as prior record.
A. CO-PERP 1 Name
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI

Iowa Project number ________|________|________|________|________

B. CO-PERP 2 Name
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI

Iowa Project number ________|________|________|________|________
C. CO-PERP 3 Name
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|
Last
______|______|______|______|______|______|______|______|______|______|______|______|______|______|______|______| |_____|
First
MI

Iowa Project number ________|________|________|________|________
20.

Date of conviction as reported in the probation report:
(Enter Month, Day and Year if known. Otherwise, enter 99 for unknown Month and 99 for unknown
Day. Enter 9999 for unknown year. Please enter 01-09 for months 1-9 and Days 1-9)
Month . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

_____|_____

Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

_____|_____

Year

.....................................................

Page 19

Exhibit F
Page 135

_____ |_____|_____|_____

IV. Instant Case Homicide Charge and Conviction

Part IV. Charges, Allegations, and Findings on Homicide Liability, Contemporaneous
Offenses and the Presence or Absence of Special Circumstances in the Instant Case.
(The purpose of this section is to document charging and sentencing outcomes in the instant case. In this section,
make no judgments about the factual basis of the grade of homicide liability determined in the case or the factual
presence or absence of special circumstances. Confine your coding to the charges, allegations, and findings on
liability and special circumstances in the defendant’s case.)

A. Homicide charges and convictions (Q.40 & 41)21
40. Original Homicide Charge (circle ONE best answer)
First-Degree Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Second-Degree Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Murder, but Degree Unspecified – PC 187 (Murder) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Unknown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
41. Homicide crime and degree for which the defendant was convicted: (circle ONE best answer)
First-Degree Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Second-Degree Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Unknown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(If multiple deceased victims, code the homicide with the highest grade homicide
conviction; if the conviction for each is the same, code the first homicide count.)

21

If the probation report does not report the homicide charge and/or conviction, consult the “Complaint” and “Information” in the case
file (for the homicide charged) and the “Report-Indeterminate Sentence” and the “Abstract of Judgment” in the case file (for the
homicide conviction).

Page 20

Exhibit F
Page 136

IV. Instant Case Homicide Charge and Conviction

42. Was the homicide charge in Q.40 reduced at any time by the prosecutor prior to conviction by the defendant’s guilty
plea or a bench trial or jury verdict?
(circle ONE best answer)

Prosecutor reduced charge from a first degree murder or PC187 (murder) to second degree murder . . 1
Prosecutor reduced charge from first degree murder or PC187 (murder) to voluntary manslaughter . . 2
Prosecutor reduced charge from second degree murder to voluntary manslaughter . . . . . . . . . . . . . . . . 3
Other charge reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Prosecutor did not reduce charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unknown if charge reduced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

43. Was the homicide charge in Q.40 reduced at any time by a court order dismissing an M1 or M2 charge made in the
information, thus leaving the case to go to a bench or jury trial only on some lesser charge?
(circle ONE best answer)

Court reduced charge from first degree murder or murder with degree unspecified to voluntary
manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Court reduced charge from second degree murder to voluntary manslaughter . . . . . . . . . . . . . . . . . . . . 2
Other charge reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Court reduced charge from first degree murder or murder with degree unspecified to second degree
murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .

4

Court did not reduce charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 8
Unknown if charge reduced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

44. Procedural basis for the homicide conviction: (circle ONE best answer)
Guilty plea

.............................................................

1

Jury trial verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Bench trial judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Trial, but unknown if tried to bench or to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Basis for conviction unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

Page 21

Exhibit F
Page 137

IV. Instant Case Contemporaneous Felonies

Contemporaneous felony charges and convictions that implicate a M1 felony murder predicate or a
felony murder special circumstance (Special Circumstance foils 17A – 17M) (Q.45A, B, C, D).
45A.

Any Contemporaneous Felony Charges or Contemporaneous Felony Convictions?
(circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Unknown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Coder notes:
If the answer to Q.45A is No (0) or Unknown (9), then skip Q.45B, Q.45C and Q.45D on the next page.
If the answer to Q.45A is Yes (1), then read and answer on next page below, questions Q45B, Q45C and
Q45D:
Q.45B-Q45D BELOW ARE CODED ON THE NEXT PAGE:

45B.

Contemporaneous Felony Charges or Allegations of crimes that are M1 predicates or
implicate special circumstances that are potentially applicable in the case:

45C.

Contemporaneous Felony Convictions:

45D.

If any Q.45B = 1 and no conviction resulted code Q.45D to 66 or 67. If a conviction resulted, omit
Q.45D.
66 – No conviction because prosecutor dropped charges unilaterally or in a plea bargain.
67 – No conviction because fact finder returned a not-guilty verdict/judgment on the charge, the
court dismissed the charge, or the trial court outcome of the charge is unknown. If the outcome
is unknown, note that fact in Q. 81 in the thumbnail as a form of information insufficiency.
Coder notes:
Code the answers to questions Q.45B, Q.45C, and Q.45D (66 or 67) by putting check marks, as
applicable, in the table below:
Rules for coding these answers:
(a) Choices 1-13 are allowed for Q.45B and Q.45C as applicable.
(b) Check box 66 or 67 if the crime was charged but did not result in a conviction.
I If the charge results in a conviction leave 66 and 67 blank.
Page 22

Exhibit F
Page 138

IV. Instant Case Contemporaneous Felonies

Foil Contemporaneous Felony
Num
01
Arson (451)

Q.45B
Charge

02

Burglary in the first or second degree (459)

03

Carjacking (215)

04

Kidnapping (207, 209, or 209.5)

05
06

Lewd act with a child under the age of 14 or
dependent adult (288)
Mayhem (203 and 205)

07

Oral copulation (288a)

08

Rape (261)

09

Rape by instrument (289)

10

Robbery (211 or 212.5)

11

Sodomy (286)

12

Torture (206)

13

Train wrecking (219)

Page 23

Exhibit F
Page 139

Q.45C Q.45D
Convict 66 67

IV. Instant Case Special Circumstances

Special circumstance (SC) allegations, findings, and sentencing outcomes.
Coder note:
If the homicide charge in the case is M2 or Voluntary Manslaughter i.e. Q.40 = 2 or 3, or the
homicide charge is unknown, i.e., Q.40 = 9, then omit Q.47-Q.54.
47.

Was one or more special circumstance(s) alleged in a M1 or 187 PC (murder)
information/indictment? (circle ONE best answer)
Yes, one was alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

Yes, two were alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Yes, three were alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Yes, four were alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Yes, five were alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Yes, six or more were alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

No indication of a S.C. allegation w/a M1 or 187 PC charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

0

Coder note:
If Q.47 = 0 then omit Q.48-Q.54.
48.

Was a special circumstance(s) allegation(s) deleted at any time by the prosecutor?
(circle ONE best answer)
Yes, one or more SC alleged and all deleted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Yes, one or more SC alleged and one or more deleted but some were not deleted . . . . . . . . . . . . . . . . 2
SC allegation but unknown if one or more deleted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
No, one or more alleged and none was deleted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49.

0

Were any of the allegations of SC stricken by an order of the court at
any time before or during the guilt trial or after verdict? (circle ONE best answer)
Yes, one or more SC alleged and all were struck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Yes, one or more SC alleged and one or more struck but some were not struck . . . . . . . . . . . . . . . .

2

SC allegation but unknown if one or more were struck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

No, one or more alleged and none was struck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

0

Page 24

Exhibit F
Page 140

IV. Instant Case Special Circumstances

50.

If there was a M1 guilty-plea or a M1 conviction at trial, was a special circumstance
found to be true or not to be true by a fact-finder (judge or jury)? (circle ONE best answer)
Yes, one or more special circumstances found to be true/present by a fact-finder . . . . . . . . . . . . . . .

1

Yes, one or more SC alleged but none was found to be true/present by a fact-finder, e.g. all
were found not present or were dismissed by the court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

No, one or more SC alleged but all dismissed by the prosecutor, e.g. in a plea bargain . . . . . . . . . . .

3

Not applicable because no M1 guilty plea or trial conviction by a fact-finder . . . . . . . . . . . . . . . . . . 8
SC charged and M1 conviction or guilty plea but unknown if a fact-finder
found a special circumstance to be true or not true . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
51.

9

If the defendant pled guilty to M1, did the defendant also admit or stipulate to the
truth of one or more SC(s)? (circle ONE best answer)
Yes, one or more special circumstances was admitted or stipulated to by the defendant . . . . . . . . . . 1
No, one or more SC alleged but the truth of none was admitted or stipulated to by the defendant . . . . 2
No because SC allegation was withdrawn before plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Not applicable because no M1 plea by defendant
Unknown if there was a M1 guilty plea

......................................

7

...........................................

9

Coder notes:
The answers for questions 52 and 53 are to be coded in the table directly following question 53.
The table contains a row for the 22 special circumstances listed in the California Penal Code,
Section 190.2 (a). There is also a final row in the table “99” to cover the situation in which SC are
alleged but their identity in unknown.
For your answers, there is one column for Q.52 and five columns for Q.53.
52.

Special Circumstance Allegation(s) in M1 Cases.
If one or more Special Circumstances was alleged (i.e. Q.47 = 1-6), code a check mark in the
applicable Q.52 column. In Q.53 code a check mark in the column that captures the outcome of each the
Special Circumstance that were coded as alleged in the Q.52 Column. If no special circumstances were
alleged, omit Q. 52 and Q. 53.

53.

Specific Special Circumstances Outcomes in M1 Cases.
For each Special Circumstance coded in Q. 53, code a check mark in one of the five Q.53 columns.
Page 25

Exhibit F
Page 141

IV. Instant Case Special Circumstances
You must check one of the five outcomes listed here:
1. The SC was found to be true by a fact finder or stipulated to by the defendant.
2. The SC was REJECTED as not true by a fact finder.
3. The SC was withdrawn by the prosecutor.
4. The SC was struck by the court.
5. The outcome of the SC charge is UNKNOWN.
A
Foil Num

B

Penal Code Section 190.2(a). California Special Circumstances.
Questions 52 and 53

1

The murder was intentional and carried out for financial gain.

2

The defendant was convicted previously of murder in the first or second
degree. For the purpose of this paragraph, an offense committed in another
jurisdiction, which if committed in California would be punishable as first or
second degree murder, shall be deemed murder in the first or second degree.
The defendant, in this proceeding, has been convicted of more than one
offense of murder in the first or second degree.

3

4

5

6

7

8

9

The murder was committed by means of a destructive device, bomb, or
explosive planted, hidden, or concealed in any place, area, dwelling, building,
or structure, and the defendant knew, or reasonably should have known, that
his or her act or acts would create a great risk of death to one or more human
beings.
The murder was committed for the purpose of avoiding or preventing a
lawful arrest, or perfecting or attempting to perfect, an escape from lawful
custody.
The murder was committed by means of a destructive device, bomb, or
explosive that the defendant mailed or delivered, attempted to mail or deliver,
or caused to be mailed or delivered, and the defendant knew, or reasonably
should have known, that his or her act or acts would create a great risk of death
to one or more human beings.
The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3,
830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6,
830.10, 830.11, or 830.12, who, while engaged in the course of the
performance of his or her duties, was intentionally killed, and the defendant
knew, or reasonably should have known, that the victim was a peace officer
engaged in the performance of his or her duties; or the victim was a peace
officer, as defined in the above-enumerated sections, or a former peace officer
under any of those sections, and was intentionally killed in retaliation for the
performance of his or her official duties. (Italicized language effective June
6, 1990)
The victim was a federal law enforcement officer or agent who, while
engaged in the course of the performance of his or her duties, was intentionally
killed, and the defendant knew, or reasonably should have known, that the
victim was a federal law enforcement officer or agent engaged in the
performance of his or her duties; or the victim was a federal law enforcement
officer or agent, and was intentionally killed in retaliation for the performance
of his or her official duties,
The victim was a firefighter, as defined in Section 245.1, who, while engaged
in the course of the performance of his or her duties, was intentionally killed,
and the defendant knew, or reasonably should have known, that the victim was
a firefighter engaged in the performance of his or her duties.

Page 26

Exhibit F
Page 142

C
Q.52

D
1

E

F G
Q.53
2 3 4

H
5

IV. Instant Case Special Circumstances
You must check one of the five outcomes listed here:
1. The SC was found to be true by a fact finder or stipulated to by the defendant.
2. The SC was REJECTED as not true by a fact finder.
3. The SC was withdrawn by the prosecutor.
4. The SC was struck by the court.
5. The outcome of the SC charge is UNKNOWN.
A
Foil Num
10

B

Penal Code Section 190.2(a). California Special Circumstances.
Questions 52 and 53

17C

The victim was a witness to a crime who was intentionally killed for the
purpose of preventing his or her testimony in any criminal or juvenile
proceeding, and the killing was not committed during the commission or
attempted commission of the crime to which he or she was a witness; or the
victim was a witness to a crime and was intentionally killed in retaliation for
his or her testimony in any criminal or juvenile proceeding. As used in this
paragraph, “juvenile proceeding” means a proceeding brought pursuant to
Section 602 or 707 of the Welfare and Institutions Code. (Italicized language
effective June 6, 1990).
The victim was a prosecutor or assistant prosecutor or a former prosecutor
or assistant prosecutor of any local or state prosecutor’s office in this or any
other state, or of a federal prosecutor’s office, and the murder was intentionally
carried out in retaliation for, or to prevent the performance of, the victim’s
official duties (Italicized language effective June 6, 1990).
The victim was a judge or former judge of any court of record in the local,
state, or federal system in this or any other state, and the murder was
intentionally carried out in retaliation for, or to prevent the performance of, the
victim’s official duties (Italicized language effective June 6, 1990).
The victim was an elected or appointed official or former official of the
federal government, or of any local or state government of this or any
other state, and the killing was intentionally carried out in retaliation for, or to
prevent the performance of, the victim’s official duties.
The murder was especially heinous, atrocious, or cruel, manifesting
exceptional depravity. [Held Unconstitutional in 1982; therefore it is not
applicable during either the Carlos Window or in 2008.]
The defendant intentionally killed the victim by means of lying in wait.
(Italicized language effective March 8, 2000). Prior to March 8, 2000
(thus, during the Carlos Window period), the statutory language of the
lying in wait special circumstance read as follows: “The defendant
intentionally killed the victim while lying in wait.”
The victim was intentionally killed because of his or her race, color,
religion, nationality, or country of origin.
The murder was committed while the defendant was engaged in, or was
an accomplice in, the commission of, attempted commission of, or the
immediate flight after committing, or attempting to commit, the following
felonies:
Robbery in violation of Section 211 or 212.5. (Italicized language effective
1991 but additional language made no substantive change.)
Kidnapping in violation of Section 207 or 209 or 209.5. (Italicized language
effective March 27, 1996.). [See Sub para. “M” below]
Rape in violation of Section 261

17D

Sodomy in violation of Section 286.

17E

The performance of a lewd or lascivious act upon the person of a child under
the age of 14 years in violation of Section 288.

11

12

13

14

15

16
17

17A
17B

Page 27

Exhibit F
Page 143

C
Q.52

D
1

E

F G
Q.53
2 3 4

H
5

IV. Instant Case Special Circumstances
You must check one of the five outcomes listed here:
1. The SC was found to be true by a fact finder or stipulated to by the defendant.
2. The SC was REJECTED as not true by a fact finder.
3. The SC was withdrawn by the prosecutor.
4. The SC was struck by the court.
5. The outcome of the SC charge is UNKNOWN.
A
Foil Num

B

Penal Code Section 190.2(a). California Special Circumstances.
Questions 52 and 53

17F

Oral copulation in violation of Section 288a.

17G

Burglary in the first or second degree in violation of Section 460.

17H

Arson in violation of subdivision (b) of Section 451.

17I

Train wrecking in violation of Section 219.

17J

Mayhem in violation of Section 203 (Effective date June 6, 1990).

17K

Rape by instrument in violation of Section 289 (Effective date June 6,
1990).
Carjacking, as defined in Section 215 (Effective date March 27, 1996).

17L
17M

18

19
20

21

22

99

To prove the special circumstances of kidnapping in subparagraph (B), or
arson in subparagraph (H), if there is a specific intent to kill [in this case], it is
only required that there be proof of the elements of those felonies. If so
established, those two special circumstances are proven even if the felony of
kidnapping or arson is committed primarily or solely for the purpose of
facilitating the murder.” (Effective date March 8, 2000). (underline and
[bracket] emphasis added)
The murder was intentional and involved the infliction of torture. Prior to
June 6, 1990, (thus, during the Carlos Window period) the statutory
language of this special circumstance also required that: “For the
purpose of this section torture requires proof of the infliction of extreme
physical pain no matter how long its duration.”
The defendant intentionally killed the victim by the administration of poison.
The victim was a juror in any court of record in the local, state, or federal
system in this or any other state, and the murder was intentionally carried out
in retaliation for, or to prevent the performance of, the victim’s official duties.
(Effective date March 27, 1996).
The murder was intentional and perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person or persons
outside the vehicle with the intent to inflict death. For purposes of this
paragraph, “motor vehicle” means any vehicle as defined in Section 415 of the
Vehicle Code. (Effective date March 27, 1996).
The defendant intentionally killed the victim while the defendant was an
active participant in a criminal street gang, as defined in subdivision (f) of
Section 186.22, and the murder was carried out to further the activities of the
criminal street gang. (Effective date March 8, 2000).
One or more Special circumstances were alleged but the identity of the alleged
SC is unknown.

Page 28

Exhibit F
Page 144

C
Q.52

D
1

E

F G
Q.53
2 3 4

H
5

IV. Instant Case – Sentence Imposed

54.

If a special circumstance was found by a fact finder in the guilt trial, did the
case advance to a penalty trial? (circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Not applicable b/c no finding of a special circumstance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Unknown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

55. Most serious sentence imposed (circle ONE best answer)
Death (M1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Life without parole (LWOP) (M1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

25 years to life (M1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

15 years to life (M2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Term of years (VM) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

Probation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

Other. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Unknown, e.g., none reported or no sentence had been imposed at the time the probation . . . . . . .
report was prepared

56.

1

9

If Q.55 = 5, what is the maximum term in years.
88 = N/A b/c Q.55 not = 5
99 = Term of years but unknown if a maximum

Page 29

Exhibit F
Page 145

___|___

V. M1 Conviction Cases

The purpose of Parts V, VI, and VII is to assess the factual death-eligibility of the instant case under three legal
regimes; pre-Furman law, Carlos Window law and 2008 law. A M1 conviction in the instant case is relevant
across all three legal regimes only if it is a controlling fact finding (CFF) and the M1 predicate in the instant
case is applicable in all three legal regimes. A fact finding or guilty plea/stipulation to the presence of a SC is
also a controlling fact finding and applicable under CW and 2008 law if the same SC is applicable.

Part V. Factual Death-Eligibility Status of Cases with a M1 Conviction
If the case resulted in a M2 or VM conviction (Q.41 = 2 or 3), omit this Part V and
proceed to Part VI.
Figure 1 at the end of this DCI presents an overview of the pathways/flow chart to nine outcomes
(bolded) that determine whether or not a case is death-eligible under Carlos Window and 2008 law. The
purpose of this section is to determine the factual death-eligibility status of cases with an M1 conviction.
Part VI addresses the death-eligibility of the cases with second degree and voluntary manslaughter
convictions.
All M1 convictions in the instant case, whether based on a guilty plea or a jury/court finding of M1
liability are based on a controlling finding of fact (CFF) for the time period in which murder was
committed. For example a M1 conviction for a murder committed during the CW is clearly a factual M1
case under CW law. The issue is whether it is also factually murder under pre-Furman and M1 under
2008 law. In this regard, consult the text and list of murder and M1 predicates in Q. 63, Q. 64, and Q. 65.
Thus, if the M1 conviction in the instant case was decided under CW law, the first question would be
whether the M1 predicate supporting that conviction was also a murder predicate under pre-Furman
law. For this study a post-Furman M1 conviction will be deemed to be factually murder under preFurman law unless it is clear that the factual predicate for the M1 conviction was not applicable as a
murder predicate under pre-Furman law.
The next question in this hypothetical would be whether the M1 predicate in the instant case is also
applicable under 2008 law. Generally this is an easier question to answer because as the law has evolved
over the three relevant time periods, new M1 predicates were added but none was repealed. Thus, a M1
conviction in the instant case under CW law will normally be factually M1 under 2008 law because the
M1 predicate under CW law is generally applicable under 2008 law. The exception to this rule that the
scope of some CW M1 predicates and special circumstances have contracted over time.
However, when the instant case involved a murder committed under 2008 law, it will be necessary to
determine whether the M1 predicate supporting the conviction also existed under CW law.

Page 30

Exhibit F
Page 146

V. M1 Conviction Cases

M1 Factual Liability Under Three Legal Regimes
M1 factual liability under pre-Furman law:
57. Given the M1 predicate(s) in the instant case, under the rule stated above on the generalizability of M1
controlling findings of fact, is the case factually murder under pre-Furman law?
(circle ONE best answer)
Clearly Yes b/c the M1 predicate supporting M1 liability in the instant case . . . . . . . . . . . . . . . .
was also applicable to murder under pre-Furman law

1

Clearly No b/c the M1 predicate supporting M1 liability in the instant case . . . . . . . . . . . . . . . .
was not applicable to murder under pre-Furman law

0

A close call. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

(If Q.57 = 1, code Part VII Q.75 = 1; if Q.57 = 0 code Q.75 = 0; if Q.57 = 2 code
Q.75 = 2 and explain the basis of the close call in Part I Q.85.
M1 factual liability under CW law:
58. Given the M1 predicate in the instant case, under the rule stated above on the generalizability
of M1 controlling findings of fact, is the case factually M1 under CW law?
(circle ONE best answer)
Clearly Yes because (a) CW law applied to the instant case, or (b) the M1 predicate supporting . . . . 1
M1 liability in the instant was also applicable under CW law.
Clearly No because the M1 predicate supporting M1 liability in the instant case . . . . . . . . . . . . . . . . 0
was not applicable under CW law.
A close call. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

(If Q.58 = 1, code Part VII Q.76 = 1; if Q.58 = 0 code Q.76 = 0; if Q.58 = 2 code
Q.76 = 2 and explain the basis of the close call in Part 1 Q.85.
M1 factual liability under 2008 law:
59.

Given the M1 predicate in the instant case, under the rule stated above on the generalizability of M1
controlling findings of fact, is the case factually M1 under 2008 law? (circle ONE best answer)
Clearly Yes b/c (a) 2008 law applied to the instant case, or (b) the M1 predicate supporting . . . .
M1 liability in the instant case was also applicable under 2008 law.

1

Clearly No b/c the M1 predicate supporting M1 liability in the instant case . . . . . . . . . . . . . . .
was not applicable under 2008 law.

0

A close call. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Page 31

Exhibit F
Page 147

V. M1 Conviction Cases

(If Q.59 = 1, code Part VII Q.79 = 1; if Q.59 = 0 code Q.79 = 0; if Q.59 = 2 code
Q.79 = 2 and explain the basis of the close call in Part I Q.85.)
The coder’s next task in the M1 conviction cases is to assess the factual presence of a special circumstance
(SC) in the case.
In that regard, the first question is whether the CFF applies to the SC issue. If the CFF applies, the
case goes to Part I, Row A Box 1A (DE) or 1B (NDE) of the flow chart, depending on whether a special
circumstance was found to be present or not present. (All box references refer to Figure 1 “Pathway to
Death-eligibility Classifications under Carlos Window and 2008 law.”)
If the CFF does not apply b/c there were no allegations and/or findings of fact on them, we assess in
Row B of Figure 1 whether the facts in the case support the presence of one or more special
circumstances, and determine whether the case goes to Box 2A (DE) or 2B (NDE) of the flow chart.)
60.

Was the presence or absence of all special circumstances in the case determined by a controlling fact
finding? (See Q.53)
(circle ONE best answer)
Yes, there was a controlling fact finding that one or more SC were present in the case
(i.e. Q53=1 for 1 or more rows) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Yes, there was a controlling fact finding that there were NO SC present in the case
(i.e. Q.53=2 or 4 for all SC allegations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
No, b/c none alleged or SC withdrawn by prosecutor in a plea bargain or outcome unknown
(i.e. Q.53=3 or 5 for all SC allegations) . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Q. 60, foil 1 is applicable but additional SC (clearly present) were not alleged……………………… …3
Q. 60, foil 2 is applicable but additional SC (clearly present) were not alleged……………………… …4

Coder notes:
If Q.60 = 1 or 2:
Advance to Q.60C-Q.61.
From there, advance to Part VII to complete your task.
If Q.60 = 0, 3, or 4 proceed to Q.60A, below:
The Factual Presence of a Special Circumstance (SC) If It Was Not Determined by a CFF.
(Code this section only if Q.60 = 0, which means the presence of a special circumstance under Q.60 is not
determined by a CFF, i.e., the CFF rule does not apply b/c no SC allegations and/or SC finding of fact.)
Coder notes:
Answers for question 60A are to be coded in the table directly following. The table contains a row
for the 22 special circumstances found in the California Penal Code, Section 190.2 (a). There are
four columns which can be checked as noted.

Page 32

Exhibit F
Page 148

V. M1 Conviction Cases - Factual Presence of SC

60A.

If the facts in the probation report indicate the factual presence of a special circumstance (SC) under
either Carlos Window law or 2008 law, code a check mark in the Q.60A columns C-D for each that
was alleged. If none was factually present omit this 60A.
Note that there are two choices under each of the columns named Carlos Window and 2008 Law.
For either or both that apply, check the appropriate box: “Clearly present” or “A close call.”
(Coder Note: Flagging Differences in SCs Under CW and 2008 law. The distinctions between SCs under CW and
2008 law for this question are flagged by the effective dates of amendments to the CW SCs with the changes noted in
italics. All of the CW SCs remain in effect under 2008 law, although a number of them have been modified, with
expansion and contractions of liability, which are indicted below. See for example, foil 10 below.)

A
Foil
Num
1
2

3

4

5

6

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 60.A
The murder was intentional and carried out for financial
gain.
The defendant was convicted previously of murder in
the first or second degree. For the purpose of this
paragraph, an offense committed in another jurisdiction,
which if committed in California would be punishable as
first or second degree murder, shall be deemed murder in
the first or second degree.
The defendant, in this proceeding, has been convicted of
more than one offense of murder in the first or second
degree.
The murder was committed by means of a destructive
device, bomb, or explosive planted, hidden, or concealed
in any place, area, dwelling, building, or structure, and the
defendant knew, or reasonably should have known, that
his or her act or acts would create a great risk of death to
one or more human beings.
The murder was committed for the purpose of avoiding
or preventing a lawful arrest, or perfecting or attempting
to perfect, an escape from lawful custody.
The murder was committed by means of a destructive
device, bomb, or explosive that the defendant mailed or
delivered, attempted to mail or deliver, or caused to be
mailed or delivered, and the defendant knew, or
reasonably should have known, that his or her act or acts
would create a great risk of death to one or more human
beings.

Page 33

Exhibit F
Page 149

C
D
Carlos Window
Clearly
present

A close
call

E

F
2008 Law

Clearly
present

A close
call

V. M1 Conviction Cases - Factual Presence of SC

A
Foil
Num
7

8

9

10

11

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 60.A
The victim was a peace officer, as defined in Section
830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34,
830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10,
830.11, or 830.12, who, while engaged in the course of the
performance of his or her duties, was intentionally killed,
and the defendant knew, or reasonably should have
known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace
officer, as defined in the above-enumerated sections, or a
former peace officer under any of those sections, and was
intentionally killed in retaliation for the performance of
his or her official duties. (Italicized language effective
June 6, 1990)
The victim was a federal law enforcement officer or
agent who, while engaged in the course of the
performance of his or her duties, was intentionally killed,
and the defendant knew, or reasonably should have
known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her
duties; or the victim was a federal law enforcement officer
or agent, and was intentionally killed in retaliation for the
performance of his or her official duties.
The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of
his or her duties, was intentionally killed, and the
defendant knew, or reasonably should have known, that
the victim was a firefighter engaged in the performance of
his or her duties.
The victim was a witness to a crime who was
intentionally killed for the purpose of preventing his or
her testimony in any criminal or juvenile proceeding, and
the killing was not committed during the commission or
attempted commission of the crime to which he or she was
a witness; or the victim was a witness to a crime and was
intentionally killed in retaliation for his or her testimony
in any criminal or juvenile proceeding. As used in this
paragraph, “juvenile proceeding” means a proceeding
brought pursuant to Section 602 or 707 of the Welfare and
Institutions Code. (Italicized language effective June 6,
1990).
The victim was a prosecutor or assistant prosecutor or
a former prosecutor or assistant prosecutor of any local or
state prosecutor’s office in this or any other state, or of a
federal prosecutor’s office, and the murder was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim’s official duties (Italicized
language effective June 6, 1990).

Page 34

Exhibit F
Page 150

C
D
Carlos Window
Clearly
present

A close
call

E

F
2008 Law

Clearly
present

A close
call

V. M1 Conviction Cases - Factual Presence of SC

A
Foil
Num
12

13

14
15

16
17

17A

17B

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 60.A
The victim was a judge or former judge of any court of
record in the local, state, or federal system in this or any
other state, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the
victim’s official duties (Italicized language effective
June 6, 1990).
The victim was an elected or appointed official or
former official of the federal government, or of any local
or state government of this or any other state, and the
killing was intentionally carried out in retaliation for, or to
prevent the performance of, the victim’s official duties.
Ommitted: former “heinous, atrocious, and cruel.”
The defendant intentionally killed the victim by means of
lying in wait. (Italicized language effective March 8,
2000). Prior to March 8, 2000 (thus, during the Carlos
Window period), the statutory language of the lying in
wait special circumstance read as follows: “The
defendant intentionally killed the victim while lying in
wait.”
The victim was intentionally killed because of his or her
race, color, religion, nationality, or country of origin.
The murder was committed while the defendant was
engaged in, or was an accomplice in, the commission
of, attempted commission of, or the immediate flight
after committing, or attempting to commit, the
following felonies:
Robbery in violation of Section 211 or 212.5. (Italicized
language effective 1991 but additional language made
no substantive change.)

17C

Kidnapping in violation of Section 207 or 209 or 209.5.
(Italicized language effective March 27, 1996). [Also
consult subparagraph “17M” below]
Rape in violation of Section 261

17D

Sodomy in violation of Section 286.

17E

The performance of a lewd or lascivious act upon the
person of a child under the age of 14 years in violation of
Section 288.
Oral copulation in violation of Section 288a.

17F
17G
17H

17I

Burglary in the first or second degree in violation of
Section 460.
Arson in violation of subdivision (b) of Section 451
(Prior to June 6, 1990, Penal Code section 190.2
referred to the arson provision contained in Section
447, but section 447 had been repealed in 1929.). [Also
consult subparagraph “17M” below]
Train wrecking in violation of Section 219.

Page 35

Exhibit F
Page 151

C
D
Carlos Window
Clearly
present

A close
call

E

F
2008 Law

Clearly
present

A close
call

V. M1 Conviction Cases - Factual Presence of SC

A
Foil
Num
17J
17K
17L
17M

18

19
20

21

22

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 60.A

C
D
Carlos Window
Clearly
present

A close
call

E

F
2008 Law

Clearly
present

A close
call

Mayhem in violation of Section 203 (Effective date June
6, 1990).
Rape by instrument in violation of Section 289
(Effective date June 6, 1990).
Carjacking, as defined in Section 215 (Effective date
March 27, 1996).
To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is
a specific intent to kill [in this case], it is only required
that there be proof of the elements of those felonies. If so
established, those two special circumstances are proven
even if the felony of kidnapping or arson is committed
primarily or solely for the purpose of facilitating the
murder.” (Effective date March 8, 2000). (underline
and [bracket] emphasis added)
The murder was intentional and involved the infliction of
torture. Prior to June 6, 1990, (thus, during the Carlos
Window period) the statutory language of this special
circumstance also required that: “For the purpose of
this section torture requires proof of the infliction of
extreme physical pain no matter how long its duration.
The defendant intentionally killed the victim by the
administration of poison.
The victim was a juror in any court of record in the
local, state, or federal system in this or any other state, and
the murder was intentionally carried out in retaliation for,
or to prevent the performance of, the victim’s official
duties. (Effective date March 27, 1996).
The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle,
intentionally at another person or persons outside the
vehicle with the intent to inflict death. For purposes of this
paragraph, “motor vehicle” means any vehicle as defined
in Section 415 of the Vehicle Code. (Effective date
March 27, 1996).
The defendant intentionally killed the victim while the
defendant was an active participant in a criminal
street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the
activities of the criminal street gang. (Effective date
March 8, 2000).

(Special circumstances adopted after the end of the Carlos Window (10/13/87) are applicable only under 2008
law. If the crime in the instant case was committed after the termination of the Carlos window and a 2008 law
special circumstance was present in the case, include that information in your answer to Q.60A.)

Page 36

Exhibit F
Page 152

V. M1 Conviction Cases - Factual Presence of SC

Under CW law: (Q.75-Q.81 referred to below)
60B.

If, in Q.60A, SC 17A through 17L was coded as present, did the defendant have the intent to kill the
victim(s)? (circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Not applicable b/c SC17A-17L not present. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

Coder note: If a CFF is reported in Q.60 for a case with a date of offense that was post-CW, determine if the SC was
in effect October 12, 1987, the last day within the CW. If the SC was in effect on that day, the CFF in the instant case
will inform your answer to Q.60C. For an instant case with the date of offense before or during the CW, a CFF on a
SC in the instant case is also a CFF under 2008 law because all SCs in effect before or during the CW law were also in
effect under January 1, 2008 law, although post-CW some of the special circumstances have been expanded or limited
as indicated in the foils of Q. 60A.

60C.

Is a special circumstance factually present in the case under CW law? (circle ONE best answer)
Clearly Yes b/c Q.60 =1 and the SC found to be present in the instant case applied under . . . .
1
CW law, or Q.60 = 0 and the facts reported in the probation report are legally sufficient to
support a determination of the factual presence of a special circumstance in the case under CW law.
Clearly No b/c Q.60 =2 and the SC found to be not present in the instant case applied . . . . . . .
under CW law, or Q.60=0 and the facts reported in the probation report are not legally sufficient
to support a determination of the factual presence of a special circumstance in the case under
CW law.

0

A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(If Q.60C = 1, code in Part VII Q.77 = 1; if Q.60C = 0 code Q.77 = 0; Q.60C = 2 code Q.77 = 2 and explain the
basis of the close call in Part I Q.85)

Under 2008 law
Is a special circumstance factually present in the case under 2008 law? (circle ONE best answer)
61.
Clearly Yes b/c Q.60 =1 and the SC found to be present in the instant case applied under . . . .
2008 law, or Q.60 = 0 and the facts reported in the probation report are legally sufficient to support
a determination of the factual presence of a special circumstance in the case under 2008 law.

1

Clearly No b/c Q.60 =2 and the SC found to be not present in the instant case applied . . . . . . .
0
under CW law, or Q.60=0 and the facts reported in the probation report are not legally sufficient to support a
determination of the factual presence of a special circumstance in the case under 2008 law.

A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(If Q.61 = 1, code in Part VII Q.80 = 1; if Q.61 = 0 code Q.80 = 0; Q.61 = 2 code Q.80 = 2 and explain
the basis of the close call in Part I Q.85)

Page 37

Exhibit F
Page 153

VI. M1 Factual Liability in M2 and VM Cases

Part VI. Factual Death-eligibility Status of Cases with an M2 or VM Conviction.
If the instant case has a M1 conviction, omit this section and go to Part VII.
Code this Part VI only if the case resulted in a M2 or VM conviction.
The purpose of this section is to determine the factual death-eligibility status of M2 and VM conviction
cases under CW and 2008 law in Part II of Figure 1. The first question is whether M2 or VM liability in the case
was determined by a CFF (Row A). If it was, and no Q. 62 exceptions apply, then the case goes to Box 3 (NDE) of
the flow chart which ends the death-eligibility inquiry. If it was not, assess the factual liability of the case. If the
case is factually M2 or VM, it goes to Boxes 4B and 4C where it is deemed not death-eligible which ends the
inquiry. If it is factually M1 the case goes to Box 4A and the coder must next assess the case for the factual
presence of SC depicted in Row C. Only when a case is factually M1 or a close call on the issue does it require a
further coding of the factual presence of a special circumstance. If a special circumstance is coded as factually
present, the case goes to Box 5A (DE) of the flow chart; otherwise, it goes to Box 5B (NDE). However, if the case
appears to be clearly factually M2 or VM, note in Q. 87 any SCs that appear to be clearly present in the case.
Please note the distinction between the defendant’s homicide “liability” and the defendant’s “culpability level”
as the terms are used herein. Liability refers to the grade of homicide (Murder or VM, pre-Furman, and M1, M2,
or VM in CW and 2008). Unless liability was determined by a CFF, the grade of the homicide in the case is a
factual question regardless of the crime of conviction. “Culpability level” refers to the most plausible factual basis
for the defendant’s liability as defined in Part A and Part B under Questions 63-65 below. For example, the most
common culpability levels for M1 under CW and 2008 law are “willful, deliberate, and premeditated” killing (foil
1) and felony murder (foils 3A-3O). Unless the probation report or a judicial opinion states the basis for the
conviction, which is rare, the coder will base his or her judgment of the defendant’s level of culpability on the facts
of the case and the coder’s application to them of the legal sufficiency test cited in note 2.

A. Is the M2 or VM Liability in the Case Determined by a CFF?
(The CFF rule applies on liability only if there was an M1 or 187 PC murder charge that resulted
in a M2 or VM conviction by a judge or jury or an M2 charge that resulted in a VM conviction by
a judge or jury.)
62. Is the defendant’s M2 or VM homicide liability in the instant case determined by a controlling fact finding?
(Circle ONE best answer)
Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
No because the jury nullification exception in para. 1 below applies . . . . . . . . . . . . . . . . . . . . . . . …… 2
Yes, although the CFF applies in the instant case, the CFF does not apply in all three periods
because different murder or M1 predicates apply in different time periods per para 2 below . . . . . . . . 3
No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Unknown. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Page 38

Exhibit F
Page 154

VI. M1 Factual Liability in M2 and VM Cases
Coder Note: If Q.62 = 1 (Yes), with two exceptions noted below, advance to Part VII and code
Q.75 through Q.86 = 0.
1. The first exception arises when there is overwhelming evidence of jury nullification underlying the
M2 or VM verdict or bench trial judgment in the instant case. When this occurs code Q.62 =2.
2. The second exception concerns the generalizability of the CFF in the instant case to each of the
three legal regimes for which you are coding. Specifically, determine on pages 39-41 the M1
predicates that were applicable on the date of the offense. You can assume that the fact finder in
the instant case found none of the M1 predicates present in the case that were in effect on the date
of the offense. However, if an M1 predicate became effective after the date of the offense and it is
factually present in the case, code Q. 62 =3. For example, if the instant case involved a kidnapping
(item 3G in table ‘Q.64 & Q.65), that circumstance would have established M1 factual culpability
under CW and 2008 law’). However, that M1 predicate would not have been applicable to the
instant case if the date of the offense in the instant case was prior to June 6, 1990. Accordingly, it
is appropriate to treat the M2 or VM conviction in the instant case as a CFF under pre-Furman
and CW law but not under 2008 law. Moreover, depending on the strength of the evidence of the
kidnapping in the probation report, it may support a coding of the factual presence of M1 under
2008 law because of the kidnapping in the instant case. When this occurs, as noted above, code
Q.62 = 3.
The differences in terms of murder liability may also run in a different direction. For
example, if the case instant case resulted in an M2 conviction that may be a CFF under CW and 2008
law, but if the facts would have supported a finding of common law murder under pre-Furman GA law,
it would be coded as factually murder under pre-Furman law. However, if the instant case involved a
CFF voluntary manslaughter conviction, that would also control for the pre-Furman period because the
applicable VM standard is comparable in pre-Furman and under CW and 2008 law.
B. Is the Case Otherwise Factually Common Law Murder Under pre-Furman, or factually M1 under
CW, and 2008 law? (note that pre-Furman GA law had no grades of murder, i.e., M1 and M2, as exist
under California CW and 2008 law).
Coder notes:
Answers for questions 63, 64, and 65 are to be coded in the next two tables directly following. The tables
contain rows for culpability levels. The first (Q. 63) table is for pre-Furman law, which includes common
law murder and voluntary manslaughter. The second table is for CW (Q. 64) and 2008 (Q. 65) law,
which embrace M1, M2, and VM. Note that there are two choices under each of the columns for each
time period. Check the appropriate box: “Clearly present” or “A close call,” as applicable for each column.
Leave the box blank if neither is applicable.
1. If the answer to Q.62 is 0, 2, or 3, code Q.63-Q.65 for the applicable level of factual homicide
culpability listed in the table below that is supported by legally sufficient facts for the three relevant periods.
Code all common law murder and M1 culpability levels that are plausible and consistent with the facts for each
period. You may code one or more of those foils a “close call” if that is appropriate.
2. If the culpability level of the case is clearly VM for Q. 63, or clearly M2 or VM for the Q.64-Q.65
time periods, code the applicable foil(s), which includes foil AA for pre-Furman law and foils 17 and 18 under
Page 39

Exhibit F
Page 155

VI. M1 Factual Liability in M2 and VM Cases
CW and 2008 law, to that effect and leave the other foils blank for that time period.22 If there is a close call on
the presence of murder or M1 culpability vs. M2 or VM culpability in a given time period (a) code the
applicable M2 or VM foils, as the case may be, a close call for that time period, and code the most applicable
murder/M1 culpability level(s) as a close call. For example, if under Carlos Window law, it is a close call
under foil 1 (willful, deliberate, and premeditated murder) and a close call for M2 (e.g., unpremeditated
murder), code both foil 1and foil 17 as close calls for that period.
Q. 63 Table: Pre-Furman factual common law murder culpability level (all of the foils in this table
are potential murder predicates under pre-Furman Georgia law):
A

B

C

Foil
num

Factual common law murder culpability levels under pre-Furman Law.

D

Q.63
Pre-Furman – GA
Law
Clearly
A close
present
call

I. Factual murder liability when the defendant is the actual killer

A.

Express malice – deliberate intent to kill at the time the defendant made up his/her mind to shoot
or strike the fatal blow without excuse, justification, or mitigation

B

Implied malice – mens rea – an “unlawful act” in which the defendant acted with “reckless
disregard of human life.”

C.

Implied malice – manner – deadly weapon used in a manner in which such a weapon is ordinarily
used to kill

Felony murder (D through K)
D.

Robbery

E.

Burglary

F.

Rape

G.

Assault with intent to rape

H.

Sodomy

I.

Seduction

J.

Mayhem

K.

Arson

L.

FOILS L THROUGH R ARE RESERVED FOR ADDITIONAL PROVISIONS

M.

22
The VM culpability level is described for pre-Furman law in the coding protocol for Q. 63 and the M2 and VM culpability levels
for Q. 64 and Q. 65 are described in the notes following the Q.64 and Q.65 table below.

Page 40

Exhibit F
Page 156

VI. M1 Factual Liability in M2 and VM Cases

N.
O.
P.
Q.
R.
II. Factual murder liability for non-actual killers
S.
Principal in the second degree – actual or constructive presence at the scene of the crime
T
.
U.
V.
W.
X.
Y.
Z.
AA.

Aider and abettor - not present at the scene of the offense
Accomplice liability in a felony murder case
FOILS 11- 16 RESERVED FOR ADDITIONAL PROVISIONS

VM culpability level*

* For this question the culpability levels for VM is described FYI in the coding protocol for this question. If applicable check clearly
present or a close call as the case may be.

Q. 64 & Q.65. M1 factual culpability level under CW and 2008 law.
Code all applicable culpability levels. Culpability levels that do not apply in the Carlos Window have
been blocked off.
A

B

Foil
num

Factual M1 culpability levels under Carlos Window and 2008
Law.

C

I. Defendant as actual killer
01

Willful, deliberate, and premeditated

2A

Destructive device

2B

An explosive

2C
2D

Knowing use of ammunition designed primarily to penetrate metal or
armor (Effective date September 13, 1982).
Poison

2E

Lying in wait

2F

Torture

Page 41

Exhibit F
Page 157

D

Q.64
Carlos Window
Clearly A close
present call

E

F

Q.65
2008 Law
Clearly A close
present call

VI. M1 Factual Liability in M2 and VM Cases
A

B

C

Foil
num

Factual M1 culpability levels under Carlos Window and 2008
Law.

2G

Discharging a firearm from a motor vehicle, intentionally at another
person outside of the vehicle with the intent to inflict death (Effective date
October 1, 1993).

2H

A weapon of mass destruction (Effective date September 17, 2002).

31

Arson (Penal Code Section 451)

3B

Rape (Penal Code Section 261)

3C

Carjacking (Penal Code Section 215) (Effective date October 1,1993)

3D

Robbery (Penal Code Section 211)

3E

Burglary (Penal Code Section 459)

3F

Mayhem (Penal Code Section 203)

3G

Kidnapping (Penal Code Section 207) (Effective date June 6, 1990).

3H

Train wrecking (Penal Code Section 219) (Effective date June 6, 1990)

3I

Torture (Penal Code Section 206) (Effective date January 1, 2000)

3J

Sodomy (Penal Code Section 286) (Effective date June 6, 1990)

3K

Lewd act with a child under 14 (Penal Code Section 288).

3L

Oral copulation (Penal Code Section 288a) (Effective date June 6,
1990)

3M

Penetration by foreign or unknown object (Penal Code Section 289)
(Effective date June 6, 1990)

3N

Lewd act with a child under 14 or a dependent person (Penal Code
Section 288). (Effective date Jan 1, 1996.)

II. Liability beyond actual killers: provokers and aiders and abettors
08

Liability for provoking a third party (a victim, a bystander, or a police
officer) to commit a homicide because the defendant or surviving coparticipant provoked the third party to commit the homicide (M1, M2)

09

The defendant (a) with knowledge of the actual killer’s unlawful purpose, and
(b) with the intent to facilitate or encourage commission of the homicide, (c)
by act or advice aided, promoted, encouraged or instigated the commission of
the homicide (M1, M2, or VM)

Page 42

Exhibit F
Page 158

D

Q.64
Carlos Window
Clearly A close
present call

E

F

Q.65
2008 Law
Clearly A close
present call

VI. M1 Factual Liability in M2 and VM Cases

10

Conspiracy Liability. The defendant, with specific intent, agreed with
the actual killer and possibly others to commit a homicide and at least
one co-conspirator committed an overt act for the purpose of
accomplishing the homicide and a co-conspirator committed homicide
(M1).

11

First Degree Felony Murder Liability. The defendant intended to or did
commit a Penal Code Section 189 enumerated felony (arson, rape carjacking,
robbery, burglary, mayhem, kidnapping, etc.) or aided and abetted the
commission of such a felony and a homicide occurred in the attempted
commission or commission of the felony regardless of whether the killing was
intentional, unintentional, or accidental (M1)
First Degree Felony Murder Liability Based on Conspiring to Commit an
Enumerated Felony. The defendant, with specific intent, agreed with the actual
killer and possibly others to commit a Penal Code Section 189 enumerated
felony (arson, rape carjacking, robbery, burglary, mayhem, kidnapping, etc.)
and at least one co-conspirator committed an overt act for the purpose of
accomplishing the felony, and a homicide occurred in the attempted
commission or commission of the felony regardless of whether the killing was
intentional, unintentional, or accidental (M1).
Natural and Probable Consequences Liability. The defendant aided and
abetted the actual killer in the commission of a non-homicidal crime for which
the homicide was a natural and probable consequence (M1, M2).

12

15
16

17

Natural and Probable Consequences Liability Based on Conspiracy.
The defendant, with specific intent, agreed with the actual killer and
possibly others to commit a non-homicidal crime for which the
homicide was a natural and probable consequence and at least one coconspirator committed an overt act for the purpose of accomplishing
the felony (M1, M2)
M2 culpability level*

18

VM culpability level*

*The culpability levels for M2 and VM are listed below for your information. They are not to be coded here.

(M2 and VM Culpability Levels Under Carlos Window (CW), and 2008 law. These definitions of M2 and
VM culpability levels are presented for coder guidance in evaluating foils 17 and 18 in the preceding
Tables for Q64 and Q.65. However, they are not to be coded in the Q64 and Q65 tables
Section A: Defendant culpability levels as the actual killer in the offense:
1. Unpremeditated murder with express malice (M2). Defendant intended to kill without deliberation and premeditation.
2. Unpremeditated murder with implied malice murder (M2): M2 liability does not require that the defendant intended to
kill. It is established where death resulted from defendant’s deliberate act with knowledge that the conduct presented a
danger to human life and the defendant acted with a conscious disregard for human life.
3. Felony murder (M2). M2 liability is triggered when the death occurred as the direct casual result of an attempted
commission, commission, or escape from the commission or an attempted commission of a felony inherently dangerous to
human life (other than those listed for M1 felony murder liability). Liability is established if defendant had specific intent
to commit the felony; intent to kill is not required. Examples of inherently dangerous felonies include:
6A = Furnishing poisonous substance.
6B = Reckless or malicious possession of destructive device.
6C = Willful or wanton disregard for safety of persons or property while attempting to elude
peace officer.

Page 43

Exhibit F
Page 159

VI. M1 Factual Liability in M2 and VM Cases
6D = Willful discharge of firearm at inhabited dwelling.
6E = Willful discharge of firearm at occupied vehicle.
6F = Selling or manufacturing illegal drugs.
6G = Kidnapping (prior to June 6, 1990).
6H = Driving under the influence of drugs or alcohol.
6I = Other__________________________.

4. Voluntary manslaughter. Defendant had a mens rea that would otherwise support murder
liability but the malice aforethought is negated because of:
7A = Provocation. The defendant acted “upon a sudden quarrel or heat of passion” based
on legally adequate provocation by the victim that arouses great fear, anger or jealousy
(Penal Code 192).
(1) However, M2 liability attaches if the provocation is inadequate or if sufficient
time to cool elapsed between the provocation and the killing.
7B = Imperfect self-defense. The defendant acted upon the actual but unreasonable belief
in the necessity to defend self/other against imminent peril to life or great bodily injury.
(During Carlos Window law VM liability under both the VM 7A and 7B prongs above
required an intent to kill)

Section B: Defendant culpability levels as an aider/abettor in the offense:
1 = Second-Degree Felony Murder Liability Based on a Felony Inherently Dangerous to Human Life.
The defendant had the specific intent to commit, encourage, or facilitate the underlying felony, and with
knowledge of the actual killer’s criminal purpose under Category 6 above and by act or advice
intentionally aided or encouraged the actual killer (M2). As with actual killer defendants, intent to kill is
not required.
2. = Second Degree Felony Murder Liability Based on Conspiring to Commit a Felony Inherently
Dangerous to Human Life. The defendant, with specific intent, agreed with the actual killer and possibly
others to commit a felony inherently dangerous to human life and at least one co-conspirator committed
an overt act for the purpose of accomplishing the felony, and a homicide occurred in the attempted
commission or commission of the felony regardless of whether killing was intentional, unintentional, or
accidental (M2)

6. FACTUAL Murder/M1 STATUS OF THE CASE
Under CW law: (Q.75-Q.81)
66.

Is the case factually M1 under Carlos Window law? (circle ONE best answer)
Clearly Yes b/c the facts reported in the probation report are legally sufficient to . . . . . . . . . . . . . . . . 1
support a determination of factual M1status compared to M2 or VM
Clearly No b/c the facts reported in the probation report are not legally sufficient . . . . . . . . . . . . . . . . 0
to support a determination of factual M1 status compared to M2 or VM.
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Page 44

Exhibit F
Page 160

VI. M1 Factual Liability in M2 and VM Cases
(If Q.66 = 1, code in Part VII Q.76 = 1; if Q.66 = 0 code Q.76 = 0; if Q.66 = 2, code
Q.76 = 2 and explain the basis of the close call in Part I Q.85.)
Under pre-Furman law:
67.

Is the factual murder/M1 status of the case different under pre-Furman law? (circle ONE best answer)
Yes, it is different b/c the relevant murder standard under pre-Furman law was different. . . . . . . . . . . 1
than the M1 standard under Carlos Window law.
No, it is the same b/c the relevant murder standard under pre-Furman law . . . . . . . . . . . . . . ………… 2
is the same as the M1 standard under Carlos Window law.

68.

Is the case factually murder under pre-Furman law? (circle ONE best answer)
Clearly Yes b/c the facts reported in the probation report are legally . . . . . . . . . . . . . . . . . . . . . . . . . 1
sufficient to support a determination of factual murder status compared to VM.
Clearly No b/c the facts reported in the probation report are not legally . . . . . . . . . . . . . . . . . . . . . . . . 0
sufficient to support a determination of factual murder status compared to VM.
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(If Q.68 = 1, code in Part VII Q.75 = 1; if Q.68 = 0 code Q.75 = 0; if Q.68 = 2, code Q.75 = 2 and
explain the basis of the close call in Part 1 Q.85).

Under 2008 law:
69.

Is the factual M1 status of the case different under 2008 law? (circle ONE best answer)
Yes, it is different b/c the relevant M1 standard is different under 2008 law . . . . . . . . . . . . . . . . . . . . . 1
than it was under Carlos Window law.
No, it is the same b/c the relevant M1 standard is the same under 2008 law . . . . . . . . . . . . . . . . . . . . . 2
as it was under Carlos Window law.

70.

Is the case factually M1 under 2008 law? (circle ONE best answer)
Clearly Yes b/c the facts reported in the probation report are legally . . . . . . . . . . . . . . . . . . . . . . . . . . 1
sufficient to support a determination of factual M1 status compared to M2 or VM
Clearly No b/c the facts reported in the probation report are not legally . . . . . . . . . . . . . . . . . . . . . . . . 0
sufficient to support a determination of factual M1 status compared to M2 or VM.
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(If Q.70 = 1, code in Part VII Q.79 = 1; if Q.70 = 0 code Q.79 = 0; if Q.70 = 2, code Q.79 = 2 and explain
the basis of the close call in Part 1 Q.85.)

Page 45

Exhibit F
Page 161

VI. Special Circumstances in M2 and VM Cases
7. For M2 or VM conviction Cases That Are Factually M1 (clearly yes or a close call) Under CW or 2008
Law, Is a Special Circumstance Factually Present?23

If the instant case is not factually M1 under CW or 2008 law (i.e., neither clearly yes nor a
close call), omit this Section and go to Part VII.
(Code only if the case is classified as factually M1 under CW or 2008 law in the Section B analysis
above, i.e. Q.66 = 1 (clearly yes) or 2 (a close call) or Q.70 = 1(clearly yes) or 2 (a close call).
(Special circumstances adopted after the end of the Carlos Window (10/13/87) are applicable only under
2008 law. If the crime in the case was committed after the termination of the Carlos window and a 2008
law special circumstance was present in the case, include that information in your answer to Q.73.)
Coder notes:
Answers for question 71 are to be coded in the table directly following Q.71. The table contains a row for
the 22 special circumstances found in the California Penal Code, Section 190.2 (a). There are four
columns which can be checked as noted.
71.

If the facts in the probation report indicate the factual presence of a special circumstance under either
Carlos Window law or 2008 law, code a check mark in the Q.71 columns for each that was alleged. If
none, don’t check anything.
(Flagging Differences in SCs Under CW and 2008 Law. Unlike the culpability level distinctions between the three
time periods in questions 63-65 that are flagged with italics and underlining, the distinctions between SCs under CW
and 2008 law for this question are flagged by the effective dates of amendments with the changes noted in italics. See,
for example, foil 10 below.)

Note that there are two choices under each of the columns named Carlos Window and 2008 Law.
For either or both that apply, check the appropriate box: “Clearly present” or “A close call”:
A
Foil
Num

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 71

1

The murder was intentional and carried out for financial gain.

2

The defendant was convicted previously of murder in the first
or second degree. For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in
California would be punishable as first or second degree murder,
shall be deemed murder in the first or second degree.
The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.

3

23

C
D
Carlos Window
Clearly
present

A close
call

E
F
2008 Law
Clearly
present

A close
call

The law is such that if a SC is applicable under CW law, it will also be applicable under 2008 law because no CW special
circumstances have been deleted, although post-CW some of the CW special circumstances have been expanded or limited as
indicated in the Q. 71 foils listed below. However, since CW a number of SC were adopted and are applicable only under 2008 law.

Page 46

Exhibit F
Page 162

VI. Special Circumstances in M2 and VM Cases
A
Foil
Num
4

5
6

7

8

9

10

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 71
The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place,
area, dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to
perfect, an escape from lawful custody.
The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered,
attempted to mail or deliver, or caused to be mailed or delivered,
and the defendant knew, or reasonably should have known, that
his or her act or acts would create a great risk of death to one or
more human beings.
The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36,
830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who,
while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a peace
officer engaged in the performance of his or her duties; or the
victim was a peace officer, as defined in the above-enumerated
sections, or a former peace officer under any of those sections,
and was intentionally killed in retaliation for the performance of
his or her official duties. (Italicized language effective June 6,
1990)
The victim was a federal law enforcement officer or agent
who, while engaged in the course of the performance of his or
her duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a federal law
enforcement officer or agent engaged in the performance of his
or her duties; or the victim was a federal law enforcement officer
or agent, and was intentionally killed in retaliation for the
performance of his or her official duties.
The victim was a firefighter, as defined in Section 245.1, who,
while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in
any criminal or juvenile proceeding, and the killing was not
committed during the commission or attempted commission of
the crime to which he or she was a witness; or the victim was a
witness to a crime and was intentionally killed in retaliation for
his or her testimony in any criminal or juvenile proceeding. As
used in this paragraph, “juvenile proceeding” means a
proceeding brought pursuant to Section 602 or 707 of the
Welfare and Institutions Code. (Italicized language effective
June 6, 1990).

Page 47

Exhibit F
Page 163

C
D
Carlos Window
Clearly
present

A close
call

E
F
2008 Law
Clearly
present

A close
call

VI. Special Circumstances in M2 and VM Cases
A
Foil
Num
11

12

13

14
15

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 71
The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor’s office in this or any other state, or of a federal
prosecutor’s office, and the murder was intentionally carried out
in retaliation for, or to prevent the performance of, the victim’s
official duties (Italicized language effective June 6, 1990).
The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state, and
the murder was intentionally carried out in retaliation for, or to
prevent the performance of, the victim’s official duties
(Italicized language effective June 6, 1990).
The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim’s official duties.
Omitted: former “heinous, atrocious, and cruel”

17C

The defendant intentionally killed the victim by means of lying
in wait. (Italicized language effective March 8, 2000). Prior
to March 8, 2000 (thus, during the Carlos Window period),
the statutory language of the lying in wait special
circumstance read as follows: “The defendant intentionally
killed the victim while lying in wait.”
The victim was intentionally killed because of his or her race,
color, religion, nationality, or country of origin.
The murder was committed while the defendant was
engaged in, or was an accomplice in, the commission of,
attempted commission of, or the immediate flight after
committing, or attempting to commit, the following felonies:
Robbery in violation of Section 211 or 212.5. (Italicized
language effective 1991 but additional language made no
substantive change.)
Kidnapping in violation of Section 207 or 209 or 209.5.
(Italicized language effective March 27, 1996. [Also consult
subparagraph “17M” below]
Rape in violation of Section 261

17D

Sodomy in violation of Section 286.

17E

The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
Oral copulation in violation of Section 288a.

16
17

17A

17B

17F
17G
17H

17I

Burglary in the first or second degree in violation of Section
460.
Arson in violation of subdivision (b) of Section 451 (Prior to
June 6, 1990, Penal Code section 190.2 referred to the arson
provision contained in Section 447, but section 447 had been
repealed in 1929.). [Also consult subparagraph “17M”
below.]
Train wrecking in violation of Section 219.

Page 48

Exhibit F
Page 164

C
D
Carlos Window
Clearly
present

A close
call

E
F
2008 Law
Clearly
present

A close
call

VI. Special Circumstances in M2 and VM Cases
A
Foil
Num
17J
17K
17L
17M

18

19
20

21

22

B
Penal Code Section 190.2(a). California Special
Circumstances. Question 71
Mayhem in violation of Section 203 (Effective date June 6,
1990).
Rape by instrument in violation of Section 289 (Effective date
June 6, 1990).
Carjacking, as defined in Section 215 (Effective date March
27, 1996).
To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is a
specific intent to kill [in this case], it is only required that there
be proof of the elements of those felonies. If so established,
those two special circumstances are proven even if the felony of
kidnapping or arson is committed primarily or solely for the
purpose of facilitating the murder.” (Effective date March 8,
2000). (underline and [bracket] emphasis added)
The murder was intentional and involved the infliction of
torture. Prior to June 6, 1990, (thus, during the Carlos
Window period) the statutory language of this special
circumstance also required that: “For the purpose of this
section torture requires proof of the infliction of extreme
physical pain no matter how long its duration.
The defendant intentionally killed the victim by the
administration of poison.
The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim’s official duties. (Effective date
March 27, 1996).
The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person or persons outside the vehicle with the intent to
inflict death. For purposes of this paragraph, “motor vehicle”
means any vehicle as defined in Section 415 of the Vehicle
Code. (Effective date March 27, 1996).
The defendant intentionally killed the victim while the
defendant was an active participant in a criminal street
gang, as defined in subdivision (f) of Section 186.22, and the
murder was carried out to further the activities of the criminal
street gang. (Effective date March 8, 2000).

Page 49

Exhibit F
Page 165

C
D
Carlos Window
Clearly
present

A close
call

E
F
2008 Law
Clearly
present

A close
call

VI. Special Circumstances in M2 and VM Cases
Under CW law:
72.

Is a special circumstance factually present in the
case under CW law? (circle ONE best answer)
Clearly Yes b/c the facts reported in the probation report are legally sufficient to . . . . . . . . . . . . . . . . 1
support a determination of the factual presence of a special circumstance in the case
under Carlos Window law
Clearly No b/c the facts reported in the probation report are not legally sufficient to . . . . . . . . . . . . . . 0
support a determination of the factual presence of a special circumstance in the case under
Carlos Window law.
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(If Q.72 = 1, code Part VII Q.77 = 1; if Q.72 = 0 code Q.77 = 0; if Q.72 = 2 code
Q.77 = 2 and explain the basis of the close call in the Part I Thumbnail Sketch template, Q.85.)

Under 2008 law:
73.

Are the statutorily defined and potentially applicable special circumstance(s) in the case different
under 2008 law compared to CW law (whether or not the SC was charged by the prosecutor or
rejected by the jury in the instant case)? (circle ONE best answer)
Yes, all are different b/c none of the statutorily defined and potentially applicable special
circumstance(s) under 2008 law were statutorily defined and potentially applicable under Carlos
Window law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
No, they are the same b/c one or more of the relevant special circumstance(s) that were statutorily
defined and potentially applicable under 2008 law were also statutorily defined and potentially
applicable under Carlos Window law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

74.

Is a special circumstance factually present in the case under 2008 law? (circle ONE best answer)
Clearly Yes b/c the facts reported in the probation report are legally sufficient to . . . . . . . . . . . . . . . 1
support a determination of the factual presence of a special circumstance in the case under
2008 law
Clearly No b/c the facts reported in the probation report are not legally sufficient to support a . . . . . 0
determination of the factual presence of a special circumstance in the case under 2008 law.
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
(If Q.74 = 1, code in Part VII Q.80 = 1; if Q.74 = 0 code Q.80 = 0; Q.74 = 2 code Q.80 = 2
and explain the basis of the close call in the Part I Thumbnail Sketch template Q.85.)

Page 50

Exhibit F
Page 166

Part VII. Summary of Coder Classifications on Factual-Homicide Liability and Deatheligibility in Three Time Periods
Pre-Furman law:
75.

Factual murder liability and death-eligibility? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Carlos Window (CW) law (12/12/1983 – 10/12/1987):
76.

Factual M1 liability under CW law? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

77.

Special circumstances present under CW law? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Not applicable b/c no M1 conviction or not factually M1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

78.

Death-eligibility under CW law? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Page 51

Exhibit F
Page 167

January 1, 2008 law:
79.

Factual M1 liability Jan. 1, 2008? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

80. Special circumstances present Jan. 1, 2008? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Not applicable b/c no M1 conviction or not factually M1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

81.

Death-eligible Jan. 1, 2008? (circle ONE best answer)
Clearly yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Clearly no . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
A close call . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Page 52

Exhibit F
Page 168

81A-88. Check all that apply in the following table:

Thumbnail Template Questions

Check below with an
“X” if the question
was answered in the
Thumbnail
Template/File

Q.81A.Information insufficiency.
Q.82. M1 liability differences under pre-Furman, CW, and 2008 law.
Q.83. Special circumstances differences under CW and 2008 law.
Q.84. Death-eligibility differences.
Q.85. Ambiguity.
Q.86. Legal Issues.
Q.87. Special Circumstances present in a CFF M2/VM Conviction
Q.88. Other facts or circumstances

89. Date the DCI for the coding for this case was completed:
MONTH

|____|____|

DAY

|____|____|

YEAR

|____|____|____|____|

Page 53

Exhibit F
Page 169

Page numbers when a Question and/or a Cross Reference is to a Page number:
A
Question (s)
or
Reference
Para. 2.a.
and 2.b.
Q. 53
Q. 60
Q. 60A
Q. 60B
Q. 60C
Q. 61
Q. 62
Part VI
Part VII
Q. 75
Q. 76
Q. 77
Q. 78
Q. 79
Q. 80
Q. 81
Q. 81A
Q. 82
Q. 84
Q. 85
Q. 87
Q. 88

B
Page(s)

S:\baldus-ra\Cal\DCI\DCI Current\DCI Declaration 12.2.09.doc

Page 54

Exhibit F
Page 170

7
25-28
32
33-36
37
37
37
38
38
51
51
51
51
51
52
52
52
53
53
53
53
53
53

Exhibit F
Page 171

C

B

A

Present (DE)

Yes
No

2B

2A

DE = Death eligible; NDE = Not death eligible

1

No
(NDE)

2

Yes
(DE)

Not Present
(NDE)
1B

1

_____________________________

Special Circumstances
Factually Present?

1A

Controlling
Fact Findings?

Page 55

C

B

A

Factually
Present?

Factual
Liability?

Controlling
Fact Findings?
Yes

5

4A

M1

4

VM
(NDE)
4B

No
(NDE)

4C

M2
(NDE)

No

5B

Yes
(DE)

Special
Circumstances?

M2 or VM
(NDE)

3

M2/VM Conviction

M1 Conviction
Special Circumstances?

Part II

Part I

PATHWAYS TO DEATH ELIGIBILITY CLASSIFICATIONS UNDER CARLOS WINDOW AND 2008 LAW:
CALIFORNIA HOMICIDE STUDY1

FIGURE 1

5A

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MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

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EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT G
DECLARATION OF GEORGE WOODWORTH, PH.D.

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Exhibit G
Page 172

AMENDED DECLARATION OF GEORGE WOODWORTH, PH.D. 

1
2

I, George Woodworth, Ph.D., declare as follows:

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1.

From 1971 until June 2010, I was employed at the University of Iowa, first as an

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Associate Professor from 1971 until 1996 and then as a Professor of Statistics and Actuarial

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Science from 1996 until my retirement earlier this year.

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2.

I received a bachelor’s degree from Carlton College in 1962 and a doctorate in

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Statistics from the University of Minnesota in 1966. My resume is attached at Appendix A of

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this declaration.

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3.

My areas of research interest are Bayesian Statistical Methodology and

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Applications. Areas in which I have done collaborative research are Clinical (medical) Trials,

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Employment Discrimination, and Capital Charging and Sentencing.

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4.

I have applied statistical methods to Capital Charging and Sentencing systems

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for many years. I am the co-author of Equal Justice And The Death Penalty: A Legal And

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Empirical Analysis (1990) (with David Baldus and Charles A. Pulaski Jr.). I have co-authored

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numerous research papers on death penalty sentencing, including Race Discrimination In

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America's Capital Punishment System Since Furman v. Georgia (1972): The Evidence Of Race

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Disparities And The Record Of Our Courts And Legislatures In Addressing The Issue, Report

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To American Bar Association, Section Of Individual Rights And Responsibilities (July 25,

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1997) (with David Baldus); and Arbitrariness and Discrimination in the Administration of the

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Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999), 81

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Neb. L. Rev. 486 (2002) (with David Baldus, Catherine Grosso, and Aaron Christ).

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23
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5.

I have qualified as an expert witness and testified in state and federal court

proceedings, including McCleskey v. Kemp, Case No. CIV C81-2434A (N.D. Ga.).
6.

Our study in this case reports the findings of an empirical study of 27,453

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California homicide cases with a date of offense between January 1, 1978, and June 30, 2002,

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that resulted in a first or second degree murder or voluntary manslaughter conviction. The

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findings of the study are based on a stratified sample of 1,900 cases drawn from the 27,453

28

case universe.
1
Amended Declaration of George Woodworth, Ph.D (with 11/04/10 corrections)

Exhibit G
Page 173

7.

1

Professor Baldus and I documented the rates of death eligibility under post-

2

Furman law among several categories of legally relevant homicide cases. We also compared

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post-Furman California death eligibility rates with post-Furman death eligibility rates in other

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states based on different research methodologies. One of these methods is based on the Federal

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Bureau of Investigation’s Supplementary Homicide Reports (SHR) reported in a recently

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published paper by Jeffery Fagan and colleagues.1 The results of their analysis of death

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eligibility rates are presented in Table 1.2 It lists the states in increasing order of their rates of

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death eligibility with California leading all states with a death eligibility rate of 37.8%.
8.

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The purpose of this declaration is to document the extent to which the reported

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California estimate of a 37.8% death eligibility rate reported in Table 1 underestimates the

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actual rate. The reason is that the SHR-based methodology on which the Table 1 estimates are

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based reflects only a minor “lying in wait” type aggravating circumstance – “sniper killings,”

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the only species of “lying in wait” that is included in the FBI’s SHR database. The broad scope

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of California’s lying-in-wait special circumstance (California Penal Code section 190.2(a)(15))

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(LIW) is simply not reflected in the SHR-based estimates of death eligibility.
9.

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When I adjust the California SHR data for the wide prevalence of the LIW

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special circumstance cases under California law, the death eligibility rate for California based

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on the SHR data is 50.3%. The underlying data for each state on which the Fagan, et. al.

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1

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Jeffrey Fagan, Franklin E. Zimring, & Amanda Geller, Capital Punishment and Capital
Murder: Market Share and the Deterrent Effects of the Death Penalty, 84 Tex. L. Rev. 1803,
1816-17 (2006) describe their methodology as follows. “The SHR has the unique advantage of
providing detailed, case-level information about the context and circumstances of each homicide
event known to the police. This allows us to identify the presence of factors that map onto the
statutory framework of the Texas murder statutes and more broadly onto the Model Penal Code
aggravating factors.” To generate a death eligibility estimate for each state, the authors classified
a murder or non-negligent homicide as death eligible if it included any of “the following
elements that are part of the recurrent language of capital-eligible homicides across the states: (a)
killings during the commission of robbery, burglary, rape or sexual assault, arson, and
kidnapping; (b) killing of children below age six: (c) multiple-victim killings; (d) ‘gangland’
killing involving organized crime of street gangs; (e) institution killings where the offender was
confined in a correctional or other governmental institution; (f) sniper killings… (g) killings in
the course of drug business.” They also defined a law enforcement officer victim as a qualifying
aggravating factor. When the defendant’s age was known cases were classified as not death
eligible if the defendant was under 16 years of age at the time of the offense.
2

This Table contains the same information as Table 4, Part II in the Baldus declaration.
2

Amended Declaration of George Woodworth, Ph.D (with 11/04/10 corrections)

Exhibit G
Page 174

TABLE 1
State Death-Eligibility Rates Rank Ordered From Low (Alabama) to High (California) (1978-2003)1
A
State
Alabama
North Carolina
Florida
Kentucky
Louisiana
Delaware
Tennessee
Mississippi
Georgia
New York
Virginia
Texas
Maryland
Ohio

B
Percent of Homicides that
are Death Eligible
13.1
16.8
18.2
18.2
18.3
18.4
18.7
19.7
20.3
20.4
20.6
21.7
21.9
22.0

Missouri
South Carolina
Nevada
New Mexico
Arkansas
Connecticut
Arizona
Kansas
Indiana
Pennsylvania
New Jersey
Colorado
Montana
Wyoming
South Dakota
Oregon
Washington
Oklahoma

22.4
22.5
22.7
22.9
23.0
23.2
23.8
23.9
24.0
25.0
25.5
26.1
26.5
26.9
27.4
28.0
28.0
28.3

Nebraska
Illinois
Idaho
Utah
New Hampshire
California

28.9
28.9
29.7
30.0
31.9
37.8

1

C
95% Confidence Interval for
Estimate in Column B
12%, 15%
16%, 18%
17%, 20%
16%, 20%
17%, 19%
14%, 23%
17%, 20%
18%, 22%
18%, 22%
18%, 22%
20%, 22%
20%, 23%
20%, 23%
21%, 23%
21%, 24%
21%, 24%
21%, 24%
21%, 25%
21%, 25%
21%, 25%
22%, 25%
20%, 28%
22%, 25%
24%, 26%
24%, 27%
24%, 28%
20%, 33%
22%, 32%
21%, 34%
25%. 30%
26%, 30%
25%, 32%
25%, 32%
27%, 31%
25%, 34%
27%, 33%
26%, 38%
36%, 40%

The estimates in this table are based on the number of death-eligible homicides reported to the FBI using the FaganGeller-Zimring estimation procedure described in the Amended Declaration of David C. Baldus at page 18, note 35.

Exhibit G
Page 175

1

estimates and my California reanalysis are based are presented in Tables 1, 2, and 3.
10.

2
3

In the balance of this declaration I explain the basis for this adjusted California

rate estimated with the SHR data.
11.

4

According to the SHR data 37.8% of the 76,225 California murder and non-

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negligent manslaughter cases reported between 1978 and 20033 were death eligible by virtue of

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possessing one of the special circumstances described in Footnote 1. The SHR population of

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reported cases contains the 27,453 First-degree murder (M1), second-degree murder (M2), and

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voluntary manslaughter (VM) convictions comprising the universe of our study (hereafter

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called the Narrowing Study). The first adjustment of the 37.8% SHR death eligibility rate

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corrected an undercount of lying-in-wait cases; the adjustment consists of deleting the 132

11

cases (0.2% of the total) in which sniping was the sole special circumstance4 and replacing

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them with an estimated 11,411 cases (15.0% of the total) in which lying in wait was the sole

13

special circumstance5. This estimate is based on our observation that 15% of the cases in our

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universe of California’s M1, M2, and VM cases were death eligible solely by virtue of the

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lying-in-wait special circumstance and assuming that rate applies to the larger SHR population.

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The second adjustment corrects an overcount in the SHR death-eligibility rate; the adjustment

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consists of deleting an estimated 1,753cases (2.3% of the total) which were death eligible solely

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by virtue of the gang related special circumstance during the period January 1, 1978, through

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March 7, 2000, when gang related killing was not a California special circumstance.6 This

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adjustment is based on our observation that 2.5% of the cases in our universe described above

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would have been death eligible solely by virtue of the gang related special circumstance; we

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arrived at the 2.3% adjustment to the SHR by prorating our 2.5% rate to the 90.8% of our study

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period during which that circumstance was not applicable. Appendix B presents the basis of

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my analysis in more detail.

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3

26

4

Table 1, header and last row; Appendix B, part 1, table row 14.
Appendix B, part 1, table row 5.

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5

Appendix B, part 1, table row 11.

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6

Appendix B, part 1, table row 12.
3

Amended Declaration of George Woodworth, Ph.D (with 11/04/10 corrections)

Exhibit G
Page 176

Exhibit G
Page 177

Exhibit G
Page 178

Exhibit G
Page 179

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Appendix A: Resume of George Woodworth, Ph.D.

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Amended Declaration of George Woodworth, Ph.D (with 11/04/10 corrections)

Exhibit G
Page 180

GEORGE WOODWORTH
CURRICULUM VITAE
February 25, 2009
Address:
George Woodworth
Department of Statistics
and Actuarial Science
241 SH
University of Iowa
Iowa City, IA 52242

FAX:
Voice:
Home:
Internet:

319-335-3017
319-335-0816
319-337-2000
[e-mail]

Personal Data:
Born: May 29, 1940, Oklahoma City, Oklahoma
Marital Status: Married with two children
Education:
B.A. Carleton College, Northfield, Minnesota, 1962
Ph.D. University of Minnesota, 1966
Employment:
Instructor, Department of Statistics, University of Minnesota, 1965-66.
Assistant Professor, Department of Statistics, Stanford University, 1966-71.
Assistent (Visiting Assistant Professor), Department of Mathematical Statistics, Lund Institute of
Technology, Lund, Sweden, 1970-71 (on leave from Stanford).
Associate Professor, Department of Statistics, The University of Iowa, Iowa City, Iowa, 19711996.
Associate Director, Director (1973-1980), Acting Director (1982-3), Adviser (1984-present):
University of Iowa Statistical Consulting Center.
Associate Professor, Department of Preventive Medicine, Division of Biostatistics, University of
Iowa, 1990-1996.
Professor, Department of Statistics and Actuarial Science, University of Iowa, 1996-.
Professor, Department of Preventive Medicine, Division of Biostatistics, University of Iowa
1996- .
Research Interests:
Bayesian Inference and Pedagogy
Smooth Bayesian Inference
Bayesian Experimental Design
Applications of Statistics in Biomedical Science, Behavioral Science, and Law and Justice
Multivariate Analysis and Discrete Multivariate Analysis

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Exhibit G
Page 181

Dissertations Supervised:
Stanford University Ph.D.:
1. Reading, James (1970). "A Multiple Comparison Procedure for Classifying All Pairs out of k
Means as Close or Distant".
2. Withers, Christopher Stroude (1971). "Power and Efficiency of a Class of Goodness of Fit
Tests."
3. Rogers, Warren (1971). "Exact Null Distributions and Asymptotic Expansions for Rank Test
Statistics."
University of Iowa, Ph.D.:
4. Huang, Yih-Min (1974). "Statistical Methods for Analyzing the Effect of Work-Group Size
Upon Performance."
5. Scott, Robert C. (1975). "Smear and Sweep: a Method of Forming Indices for Use in Testing
in Non-Linear Systems."
6. Hoffman, Lorrie Lawrence (1981). "Missing Data in Growth Curves."
7. Patterson, David Austin (1984). "Three-Population Partial Discrimination."
8. Mori, Motomi (1989). "Analysis of Incomplete Longitudinal Data in the Presence of
Informative Right Censoring." (Biostatistics, joint with Robert Woolson)
9. Galbiati-Riesco, Jorge Mauricio (1990). "Estimation of Choice Models Under
Endogenous/Exogenous Stratification."
10. Shin, Mi-Young (1993). "Consistent Covariance Estimation for Stratified Prospective and
Case-Control Logistic Regression."
11. Lian, Ie-Bin (1993). "The Impact of Variable Selection Procedures on Inference for a
Forced-in Variable in Linear and Logistic Regression."
12. Nunez Anton, Vicente A. (1993). "Analysis of Longitudinal Data with Unequally Spaced
Observations and Time Dependent Correlated Errors."
13. Bosch, Ronald J. (1993). "Quantile Regression with Smoothing Splines."
14. Samawi, Hani Michel (1994). "Power Estimation for Two-Sample Tests Using Importance
and Antithetic Resampling." (Biostatistics, joint with Jon Lemke)
15. Chen, Hungta (1995). “Analysis of Irregularly Spaced Longitudinal Data Using a Kernel
Smoothing Approach.” (Biostatistics)
16. Nichols, Sara (2000). “Logistic Ridge Regression.” (Biostatistics)
17. Dehkordi, Farideh Hosseini (2001). "Smoothness Priors for Longitudinal Covariance
Functions." (Biostatistics)
18. Meyers, Troy (2002) "Frequentist properties of credible intervals."
19. Zhao, Lili, (2006) "Bayesian decision-theoretic group sequential analysis with survival
endpoints in Phase II clinical trials."
20. Chakravarty, Subhashish (2007) “Bayesian surface smoothing under anisotropy.”

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Exhibit G
Page 182

University of Iowa, MS:
19. Juang , Chifei (1993). "A Comparison of Ordinary Least Squares and Missing Information
Estimates for Incomplete Block Data."
20. Wu, Chia-Chen (1993). "Time Series Methods in the Analysis of Automatically Recorded
Behavioral Data."
21. Peng, Ying (1995). "A Comparison of Chi-Square and Normal Confidence Intervals for
Variance Components Estimated by Maximum Likelihood."
22. Wu, Li-Wei (1996). “CART Analysis of the Georgia Charging and Sentencing Study.”
23. Meyers,Troy (2000) "Bias Correction for Single-Subject Information Transfer in
Audiological Testing."
Publications
Refereed Publications (Law review articles are reviewed and edited by law students):
1. Savage, I.R., Sobel, M., Woodworth, G.G. (1966), "Fine Structure of the Ordering of
Probabilities of Rank Orders in the Two Sample Case," Annals of Mathematical Statistics,
37, 98-112.
2. Basu, A.P., Woodworth, G.G. (1967), "A Note on Nonparametric Tests for Scale," Annals
of Mathematical Statistics, 38, 274-277.
3. Rizvi, M.M., Sobel, M., Woodworth, G.G. (1968), "Non-parametric Ranking Procedures
for Comparison with a Control," Annals of Mathematical Statistics, 39, 2075-2093.
4. Woodworth, G.G. (1970), "Large Deviations, Bahadur Efficiency of Linear Rank
Statistics," Annals of Mathematical Statistics, 41, 251-183.
5. Rizvi, M.H., Woodworth, G.G. (1970), "On Selection Procedures Based on Ranks:
Counterexamples Concerning Least Favorable Configurations," Annals of Mathematical
Statistics, 41, 1942-1951.
6. Woodworth, G.G. (1976), "t for Two: Preposterior Analysis for Two Decision Makers:
Interval Estimates for the Mean," The American Statistician, 30, 168-171.
7. Hay, J.G., Wilson, B.D., Dapena, J., Woodworth, G.G. (1977), "A Computational
Technique to Determine the Angular Momentum of a Human Body," J. Biomechanics, 10,
269-277.
8. Woodworth, G.G. (1979), "Bayesian Full Rank MANOVA/MANCOVA: An Intermediate
Exposition with Interactive Computer Examples," Journal of Educational Statistics, 4(4),
357-404.
9. Baldus, DC., Pulaski, C.A., Woodworth, G.G., Kyle, F. (1980), "Identifying Comparatively
Excessive Sentences of Death: A Quantitative Approach," Stanford Law Review, 33(1),174.
10. Louviere, J.J., Henley, D.H., Woodworth, G.G., Meyer, J.R., Levin, I. P., Stoner, J.W.,
Curry, D., Anderson D.A. (1981), "Laboratory Simulation vs. Revealed Preference
Methods for Estimating Travel Demand Models: An Empirical Comparison,"
Transportation Research Record, 797, 42-50.
11. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1983), "Comparative Review of Death
Sentences: An Empirical Study of the Georgia Experience," The Journal of Criminal Law
and Criminology, 74(3), 661-753.

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Exhibit G
Page 183

12. Louviere, J.J., Woodworth, G.G. (1983), "Design and Analysis of Simulated Consumer
Choice of Allocation Experiments: An Approach Based on Aggregate Data," Journal of
Marketing Research, XX, 350-367.
13. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1986), "Monitoring and Evaluating
Contemporary Death Sentencing Systems: Lessons from Georgia," U.C. Davis Law Review,
18(4), 1375-1407.
14. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1986), "Arbitrariness and Discrimination
in the Administration of the Death Penalty: A Challenge to State Supreme Courts," Stetson
Law Review, XV(2), 133-261.
15. Bober, T., Putnam, C.A., Woodworth, G.G. (1987), "Factors Influencing the Angular
Velocity of a Human Limb Segment," Journal of Biomechanics, 20(5), 511-521.
16. Gantz, B.J., Tyler, R.S., Knutson, J.F., Woodworth, G.G., Abbas, P., McCabe, B.F.,
Hinrichs, J., Tye-Murray, N., Lansing, C., Kuk, F., Brown, C. (1988), "Evaluation of Five
Different Cochlear Implant Designs: Audiologic Assessment and Predictors of
Performance," Laryngoscope, 98(10), 1100-6.
17. Tye-Murray, N., Woodworth, G.G. (1989), "The Influence of Final Syllable Position on the
Vowel and Word Duration of Deaf Talkers," Journal of the Acoustical Society of America,
85, 313-321.
18. Baker, R.G., Van Nest, J., Woodworth, G.G. (1989), "Dissimilarity Coefficients for Fossil
Pollen Spectra from Iowa and Western Illinois During the Last 30,000 Years," Palynology,
13, 63-77.
19. Shymansky, J.A., Hedges, L.V., Woodworth, G.G. (1990), "A Reassessment of the Effects
of 60's Science Curricula on Student Performance," Journal of Research in Science
Teaching, 27(2), 127-144.
20. Tye-Murray, N., Purdy, S., Woodworth, G.G., Tyler, R.S. (1990), "Effect of Repair
Strategies on Visual Identification of Sentences," Journal of Speech and Hearing Disorders,
55, 621-627.
21. Cadoret, R.C., Troughton, E.P., Bagford, J.A., Woodworth, G.G. (1990), "Genetic and
Environmental Factors in Adoptee Antisocial Personality," European Archives of
Psychiatry and Neurological Sciences, 239(4), 231-240.
22. Chakraborty, G., Woodworth, G.G., Gaeth, G.J., Ettenson, R. (1991), "Screening for
Interactions Between Design Factors and Demographics in Choice-Based Conjoint,"
Journal of Business Research, 23(3), 219-238.
23. Kochar, S.C., Woodworth, G.G. (1991). "Rank order Probabilities for the Dispersion
Problem," Statistics & Probability Letters, 14(4), 203-208.
24. Knutson, J.F., Hinrichs, J.V., Tyler, R.S., Gantz, B.J., Schartz, H.A., Woodworth, G.G.
(1991), "Psychological Predictors of Audiological Outcomes of Multichannel Cochlear
Implants: Preliminary Findings," Annals of Otology, Rhinology & Laryngology, 100(10),
817-822.
25. Knutson, J.F., Schartz, H.A., Gantz, B.J., Tyler, R.S., Hinrichs, J.V., Woodworth, G.G.
(1991), “Psychological Change Following 18 Months of Cochlear Implant Use,” Annals of
Otology, Rhinology & Laryngology, 100(11), 877-882.
26. Kirby, R.F., Woodworth, C.H., Woodworth G.G., Johnson, A.K. (1991), "Beta-2
Adrenoceptor Mediated Vasodilation: Role in Cardiovascular Responses to Acute Stressors
in Spontaneously Hypertensive Rats," Clin. and Exper. Hypertension.- Part A, Theory and
Practice, 13(5), 1059-1068.

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Exhibit G
Page 184

27. Tye-Murray, N., Tyler, R.S., Woodworth, G.G., Gantz, B.J. (1992), "Performance over
Time with a Nucleus or Ineraid Cochlear Implant," Ear and Hearing, 13, 200-209.
28. Tye-Murray, N., Purdy, S.C., Woodworth, G.G. (1992), "Reported Use of Communication
Strategies by SHHH Members: Client, Talker, and Situational Variables," Journal of
Speech & Hearing Research, 35(3), 708-717.
29. Mori, M., Woodworth, G.G., Woolson, R.F. (1992), "Application of Empirical Bayes
Inference to Estimation of Rate of Change in the Presence of Informative Right Censoring,"
Statistics in Medicine, 11, 621-631.
30. Shymansky, J.A., Woodworth, G.G., Norman, O., Dunkhase, J., Matthews, C., Liu, C.T.
(1993), "A Study of Changes in Middle School Teachers' Understanding of Selected Ideas
in Science as a Function of an In-Service Program Focusing on Student Preconceptions," J.
Res. in Science Teaching, 30, 737-755.
31. Wallace, R.B., Ross, J.E., Huston, J.C., Kundel, C., Woodworth, G.G. (1993), "Iowa
FICSIT Trial: The Feasibility of Elderly Wearing a Hip Joint Protective Garment to Reduce
Hip Fractures," J. Am. Geriatr. Soc., 41(3), 338-340.
32. Gantz, B.J., Woodworth, G.G., Knutson, J. F., Abbas, P.J., Tyler, R.S. (1993), "Multivariate
Predictors of Success with Cochlear Implants," Advances in Oto-Rhino-Laryngology, 48,
153-67.
33. Mori, M., Woolson, R.F., Woodworth, G.G. (1994), "Slope Estimation in the Presence of
Informative Right Censoring: Modeling the Number of Observations as a Geometric
Random Variable," Biometrics, 50(1), 39-50.
34. Nunez-Anton, V., Woodworth, G.G. (1994), "Analysis of Longitudinal Data with
Unequally Spaced Observations and Time Dependent Correlated Errors," Biometrics, 50(2),
445-456.
35. Baldus, D.C., Woodworth, G.G., Pulaski, C.A. (1994), "Reflections on the Inevitability of
Racial Discrimination in Capital Sentencing and the Impossibility of Its Prevention,
Detection, and Correction," Washington and Lee Law Review, 51(2), 359-430.
36. Cutrona, C.E., Cadoret, R.J., Suhr, J.A., Richards, C.C., Troughton, E. Schutte, K.,
Woodworth, G. G. (1994), "Interpersonal Variables in the Prediction of Alcoholism
Among Adoptees: Evidence for Gene-Environment Interactions," Comprehensive
Psychiatry, 35(3), 171-9.
37. De Fillippo, C.L., Lansing, C.R., Elfenbein, J.L., Kallaus-Gay, A., Woodworth, G.G.
(1994), "Adjusting Tracking Rates for Text Difficulty via the Cloze Technique," Journal of
the American Academy of Audiology, 5(6), 366-78
38. Gantz, B.J., Tyler, R.S., Woodworth, G.G., Tye-Murray, N. Fryauf-Bertschy, H. (1994),
"Results of Multichannel Cochlear Implants in Congenital and Acquired Prelingually
Deafened Children: Five Year Follow-Up," Am. J. Otol., 15 (Supplement 2), 1-7.
39. Cadoret, R.J., Troughton, E., Woodworth, G.G. (1994), "Evidence of Heterogeneity of
Genetic Effect in Iowa Adoption Studies," Annals of the New York Academy of Sciences,
708, 59-71.
40. Bosch, R., Ye, Y., Woodworth, G.G. (1995), "An Interior Point Quadratic Programming
Algorithm Useful for Quantile Regression with Smoothing Splines," Computational
Statistics and Data Analysis, 19, 613-613.
41. Cadoret, R.J., Yates, W.R., Troughton, E., Woodworth, G.G., Stuart, M.A. (1995),
"Adoption Study Demonstrating Two Genetic Pathways to Drug Abuse," Archives of
General Psychiatry, 52(1), 42-52.

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Exhibit G
Page 185

42. Tye-Murray, N., Spencer, L., Woodworth, G.G. (1995), “Acquisition of Speech by Children
who have Prolonged Cochlear Implant Experience,” Journal of Speech & Hearing
Research, 38(2), 327-37.
43. Cadoret, R.J., Yates, W.R., Troughton, E., Woodworth, G.G., Stewart, M.A. (1995),
“Genetic-Environmental Interaction in the Genesis of Aggressivity and Conduct Disorders,”
Archives of General Psychiatry, 52(11), 916-924.
44. Tyler, R.S., Lowder, M.W., Parkinson, A.J., Woodworth, G.G., Gantz, B.J. (1995),
“Performance of Adult Ineraid and Nucleus Cochlear Implant Patients after 3.5 Years of
Use,” Audiology, 34(3), 135-144.
45. Baldus, D, MacQueen, JC, and Woodworth GG. (1995) "Improving Judicial Oversight of
Jury Damages Assessments: A Proposal for the Comparative Additur/Remittitur Review of
Awards for Nonpecuniary Harms and Punitive Damages," with John C. MacQueen and
George Woodworth, 80 Iowa Law Review 1109 (1995), 159 pages.
46. Parkinson, A.J., Tyler, R.S., Woodworth, G.G., Lowder, M., Gantz, B.J., (1996) "A WithinSubject Comparison of Adult Patients Using the Nucleus F0F1F2 and F0F1F2B3B4B5
Speech Processing Strategies," Journal of Speech & Hearing Research, Volume 39, 261277.
47. Baldus, D., MacQueen, J.C., Woodworth, G.G., (1996) “Improving Judicial Oversight of
Jury Damages Assessments: A Proposal for the Comparative Additur/Remittitur Review of
Awards for Nonpecuniary Harms and Punitive Damages,” Iowa Law Review, (80) 11091267.
48. Cadoret, Remi J., Yates, William R., Troughton, E., Woodworth, G.G. (1996) "An
Adoption Study of Drug Abuse/Dependency in Females," Comprehensive Psychiatry, Vol.
37, No. 2, 88-94.
49. Tripp-Reimer, T., Woodworth, G.G., McCloskey, J.C., Bulechek, G. (1996), “The
Dimensional Structure of Nursing Intervention,” Nursing Research 45(1) 10-17.
50. Tyler RS. Fryauf-Bertschy H. Gantz BJ. Kelsay DM. Woodworth GG. (1997) "Speech
perception in prelingually implanted children after four years," Advances in Oto-RhinoLaryngology. 52:187-92.
51. Tyler RS, Gantz BJ, Woodworth GG, Fryauf-Bertschy H, and Kelsay DM. (1997)
"Performance of 2- and 3-year-old children and prediction of 4-year from 1-year
performance. American Journal of Otology. 18(6 Suppl):S157-9, 1997.
52. Miller CA, Abbas PJ, Rubinstein JT, Robinson BK, Matsuoka AJ, and Woodworth G.
(1998) "Electrically evoked compound action potentials of guinea pig and cat: responses to
monopolar, monophasic stimulation." Hearing Research. 119(1-2):142-54, 1998 May.
53. Knutson JF, Murray KT, Husarek S, Westerhouse K, Woodworth G, Gantz BJ, and Tyler
RS. (1998) "Psychological change over 54 months of cochlear implant use." Ear &
Hearing, 19(3):191-201, 1998.
54. Gfeller K, Knutson JF, Woodworth G, Witt S, and DeBus B. (1998) "Timbral recognition
and appraisal by adult cochlear implant users and normal-hearing adults." Journal of the
American Academy of Audiology, 9(1):1-19, 1998.
55. Baldus D, Woodworth G, Zuckerman D, Weiner NA, Broffitt B. (1998) "Racial
Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal
Overview with Recent Findings from Philadelphia," Cornell Law Review, 88:6, 1998.
56. Green GE. Scott DA. McDonald JM. Woodworth GG. Sheffield VC. Smith RJ. Carrier rates
in the midwestern United States for GJB2 mutations causing inherited deafness. JAMA.
281(23):2211-6, 1999 Jun 16.
6

Exhibit G
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57. Gantz BJ. Rubinstein JT. Gidley P. Woodworth GG. Surgical management of Bell's palsy.
Laryngoscope. 109(8):1177-88, 1999 Aug
58. Featherstone KA. Bloomfield JR. Lang AJ. Miller-Meeks MJ. Woodworth G. Steinert RF.
Driving simulation study: bilateral array multifocal versus bilateral AMO monofocal
intraocular lenses. Journal of Cataract & Refractive Surgery. 25(9):1254-62, 1999 Sep.
59. Weiler JM. Bloomfield JR. Woodworth GG. Grant AR. Layton TA. Brown TL. McKenzie
DR. Baker TW. Watson GS. Effects of fexofenadine, diphenhydramine, and alcohol on
driving performance. A randomized, placebo-controlled trial in the Iowa driving simulator.
Annals of Internal Medicine. 132(5):354-63, 2000 Mar 7
60. Tyler RS. Teagle HF. Kelsay DM. Gantz BJ. Woodworth GG. Parkinson AJ. Speech
perception by prelingually deaf children after six years of Cochlear implant use: effects of
age at implantation. Annals of Otology, Rhinology, & Laryngology - Supplement. 185:82-4,
2000 Dec.
61. Ballard KJ. Robin DA. Woodworth G. Zimba LD. Age-related changes in motor control
during articulator visuomotor tracking. Journal of Speech Language & Hearing Research.
44(4):763-77, 2001 Aug.
62. Gfeller K. Witt S. Woodworth G. Mehr MA. Knutson J. Effects of frequency, instrumental
family, and cochlear implant type on timbre recognition and appraisal. Annals of Otology,
Rhinology & Laryngology. 111(4):349-56, 2002 Apr.
63. Green GE. Scott DA. McDonald JM. Teagle HF. Tomblin BJ. Spencer LJ. Woodworth GG.
Knutson JF. Gantz BJ. Sheffield VC. Smith RJ. Performance of cochlear implant recipients
with GJB2-related deafness. American Journal of Medical Genetics. 109(3):167-70, 2002
May 1.
64. Weiler JM. Quinn SA. Woodworth GG. Brown DD. Layton TA. Maves KK. Does heparin
prophylaxis prevent exacerbations of hereditary angioedema?. Journal of Allergy & Clinical
Immunology. 109(6):995-1000, 2002 Jun.
65. Berkowitz RB. Woodworth GG. Lutz C. Weiler K. Weiler J. Moss M. Meeves S. Onset of
action, efficacy, and safety of fexofenadine 60 mg/pseudoephedrine 120 mg versus placebo
in the Atlanta allergen exposure unit. Annals of Allergy, Asthma, & Immunology. 89(1):3845, 2002 Jul.
66. Baldus, D, Woodworth GG, Grosso, C., Christ, M. (2002) “Arbitrariness and Discrimination
in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska
Experience (1973-1999),” with George Woodworth, Catherine M. Grosso, and Aaron M.
Christ, 81 Nebraska Law Review 486 (2002), 271 pages.
67. Baldus, D, and Woodworth GG. (2003) “Race Discrimination in the Administration of the
Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post1990 Research,” with George Woodworth, 39 Criminal Law Bulletin 194 (2003), 33 pages.
68. Kadane, J. and Woodworth G.G. (2004) "Hierarchical Models for Employment Decisions,"
Journal of Business and Economic Statistics, 1 April 2004, vol. 22, no. 2, pp. 182-193(12).
69. Woodworth, G.G. and Kadane, J.B. (2004) “Expert testimony supporting post-sentence civil
incarceration of violent sexual offenders.” Law Probablity and Risk, 2004 3: 221-241.
70. Baldus, D. and Woodworth, G.G., “Race Discrimination and the Legitimacy of Capital
Punishment: Reflections on the Interaction of Fact and Perception," 53 DePaul Law Review
1411 (2004).
71. Weiler K. Christ AM. Woodworth GG. Weiler RL. Weiler JM. “Quality of patient-reported
outcome data captured using paper and interactive voice response diaries in an allergic

7

Exhibit G
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rhinitis study: is electronic data capture really better?. Annals of Allergy, Asthma, &
Immunology. 92(3):335-9, 2004 Mar.
72. Robin DA, Jacks A, Hageman C, Clark HM, Woodworth G., “Visuomotor tracking abilities
of speakers with apraxia of speech or conduction aphasia,” Brain and Language,
Aug;106(2):98-106. 2008.
73. Woodworth, G.G. and Kadane, J. "Age and Time-Varying Proportional Hazards Model for
Employment Discrimination," Annals of Applied Statistics, 2009 accepted pending
revisions.
74. Zhao, L and Woodworth, G.G. “Bayesian decision sequential analysis with survival endpoint
in phase II clinical trials,” Stat Med, 2009, Feb 18.
Books, Chapters:
75. Bober, T., Hay, J.G., Woodworth, G.G. (1979), "Muscle Pre-Stretch and Performance," in
Science in Athletics, eds. Juris Terauds and George G. Dales, Del Mar CA: Academic
Publishers, pp. 155-166.
76. Hay, J.G., Dapena, J., Wilson, B.D., Andrews, J.G., Woodworth, G.G. (1979), “An
Analysis of Joint Contributions to the Performance of a Gross Motor Skill," in International
Series on Biomechanics, Vol. 2B, Biomechanics VI-B, eds. Erling Asmussen and Kuert
Jorgensen, Baltimore: University Park Press, pp. 64-70.
77. Hay, J.G., Vaughan, C.L., Woodworth, G.G. (1980). "Technique and Performance:
Identifying the Limiting Factors," in Biomechanics VII-B, eds. Adam Morecki, Kazimerz
Fidelus, Krzysztof Kedzior, Andrzej Wit, Baltimore: University Park Press, pp. 511-520.
78. Woodworth, G.G. (1980). "Numerical Evaluation of Preposterior Expectations in the TwoParameter Normal Model, with an Application to Preposterior Consensus Analysis," in
Bayesian Analysis in Econometrics and Statistics, ed. Arnold Zellner, Amsterdam: NorthHolland Publishing Co., pp. 133-140.
79. Hodges, L.V., Shymansky, J.A., Woodworth, G.G. (1989), Modern Methods of MetaAnalysis: an NSTA Handbook, Washington, D.C.: National Science Teachers Association.
80. Baldus, D.C., Woodworth, G.G., Pulaski, C.A. (1990), Equal Justice and the Death
Penalty: A Legal and Empirical Analysis, Boston: Northeastern University Press.
81. Baldus, D., Pulaski, C., Woodworth GG (1992) "Law and Statutes in Conflict: Reflections
on McCleskey v. Kemp," in Handbook of Psychology and Law, edited by Dorothy K.
Kagehiro and William S. Laufer. New York: Springer-Verlag, 1992.
82. Baldus, D., Pulaski, C., Woodworth GG (1992) "Race Discrimination and the Death
Penalty," with Charles J. Pulaski, Jr. and George Woodworth, in The Oxford Companion to
the Supreme Court of the United States. New York: Oxford University Press, 1992, p 705-7.
83. Woodworth, G.G. (1994). "Managing Meta-Analytic Databases," in The Handbook of
Research Synthesis, eds. Harris Cooper and Larry V. Hedges, New York: Russell Sage
Foundation, pp. 177-189.
84. Lovelace, D. Cryer, J., Woodworth, G.G. (1994), Minitab Handbook to Accompany
Statistics for Business Data Analysis and Modelling, 2nd edition, Belmont, CA:
Wadsworth Publishing Company.
85. Tye-Murray, N. Kirk, K.L., Woodworth, G.G. (1994). "Speaking with the Cochlear Implant
Turned On and Turned Off," in Datenknovertierung, Reproduktion und Drick, eds. I.J.
Hochmair-Desoyer and E.S. Hochmair, Wien, Manz, pp. 552-556.

8

Exhibit G
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86. Baldus, D. MacQueen, JC, Woodworth GG. (1996) "Additur/Remittitur Review: An
Empirically Based Methodology for the Comparative Review of General Damages Awards
for Pain, Suffering, and Loss of Enjoyment of Life," with John C. MacQueen and George
Woodworth, in Reforming the Civil Justice System, edited by Larry Kramer. New York:
New York University Press, 1996, p 386, 30 pages.
87. Baldus, D, and Woodworth, GG. (1998) "Race Discrimination and the Death Penalty: An
Empirical and Legal Overview," with George Woodworth, in America's Experiment with
Capital Punishment, edited by James C. Acker, Robert M. Bohm, and Charles S. Lanier.
Durham, NC: Carolina Academic Press, 1998, page 385, 32 pages.
88. Woodworth, George G. Biostatistic: A Bayesian Introduction. New York: John Wiley and
Sons, September, 2004.
Unrefereed Articles, Reviews.
89. Libby, D.L., Novick, M.R., Chen, J.A., Woodworth, G.G., Hamer, R.M. (1981), "The
Computer-Assisted Data Analysis (CADA) Monitor," The American Statistician, 35(3),
165-166.
90. Woodworth, G.G. (1987), "STATMATE/PLUS, Version 1.2," The American Statistician,
41(3), 231-233.
91. Hoffmaster, D., Woodworth, G.G. (1987), "A FORTRAN Version of the Super Duper
Pseudorandom Number Generator," Science Software Quarterly, 3(2), 100-102.
92. Baldus, D.C., Woodworth, G.G., Pulaski, C.A. (1987) “Death penalty in Georgia remains
racially suspect,” Atlanta Journal and Constitution, September 6, 1987.
93. Hawkins, D., Conaway, M., Hackl, P., Kovacevic, M., Sedransk, J., Woodworth, G.G.,
Bosch, R, Breen, C. (1989) “Report on Statistical Quality of Endocrine Society Journals,”
Endocrinology, 125(4), 1749-53.
94. Woodworth, G.G. (1989). "Statistics and the Death Penalty," Stats. The Magazine for
Students of Statistics, 2, 9-12.
95. Baldus, D.C., Pulaski, C.A., Woodworth, G.G. (1989), "Reflections on 'Modern' Death
Sentencing Systems," Book review, Criminal Law Forum, 1, 190-197.
96. Baldus, D., Woodworth, G.G. (1993). “Proportionality: The View of the Special Master,”
Chance, New Directions for Statistics and Computers, 6(3), 9-17.
97. "Race Discrimination in America's Capital Punishment System since Furman v. Georgia
(1972): The Evidence of Race Disparities and the Record of Our Courts and Legislatures in
Addressing the Issue," with George Woodworth, Report to the A.B.A. Section of Individual
Rights and Responsibilities (1997), 19 pages.
98. Baldus, David C., George Woodworth, David Zuckerman, Neil Alan Weiner, and Barbara
Broffitt (2001). “The Use of Peremptory Challenges in Capital Murder Trials: A legal and
Empirical Analysis,” University of Pennsylvania Journal of Constitutional Law, February,
2001.
99. “Complement to Chapter 6. The WinBUGS Program,” in Bayesian Statistics: Principles,
Models, and Applications, Second Edition, by S. James Press, John Wiley and Sons, Inc.,
New York, 2002.

9

Exhibit G
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Convention Papers, other Oral Presentations:
100. Woodworth, G.G. (1983), "Analysis of a Y-Stratified Sample: The Georgia Charging and
Sentencing Study," in Proceedings of the Second Workshop on Law and Justice Statistics,
ed. Alan E. Gelfand, U.S. Department of Justice, Bureau of Justice Statistics, pp. 18-22.
101. Woodworth, G.G., Louviere, J.J. (1985), “Simplified Estimation of the MNL Choice
Model using IRLS,” Contributed talk at TIMS/ORSA Marketing Science Conference at
Vanderbilt University.
102. Woodworth, G.G. (1985), “Recent Studies of Race- and Victim Effects in Capital
Sentencing,” Proceedings of the Third Workshop on Law and Justice Statistics, ed. G.G.
Woodworth, U.S. Department of Justice, Bureau of Justice Statistics, pp. 55-58.
103. Woodworth, G.G., Louviere, J.J. (1988), "Nested Multinomial Logistic Choice Models
Under Exogenous and Mixed Endogenous-Exogenous Stratification," ASA Proceedings of
the Business and Economics Statistics Section, American Statistical Association, pp. 121129.
104. Woodworth, G.G. (1989), "Trials of an Expert Witness," ASA Proceedings of the Social
Science Section, American Statistical Association, pp. 143-146.
105. Kirby, R.F., Woodworth, C.H., Woodworth, G.G., Johnson A.K., (1989), "Differential
Cardiovascular Effects of Footshock and Airpuff Stressors in Wistar-Kyoto and
Spontaneously Hypertensive Rats," Society for sNeuroscience Abstracts, 15, 274.
106. Woodworth, C.H., Kirby, R.F., Woodworth, G.G., Johnson, A.K. (1989), "Spontaneously
Hypertensive and Wistar-Kyoto Rats Show Behavioral Differences but Cardiovascular
Similarities in Tactile Startle," Society for Neuroscience Abstracts, 15, 274.
107. Woodworth, G.G., Mah, Jeng, Breiter, D. “Bayesian Experimental Design of Sequential
and Nonsequential Medical Device Trials. Contributed Talk, Joint Statistical Meeting 2005,
Minneapolis, MN
Unpublished Reports:
108. Baldus, D.C., Woodworth, G.G., Pulaski C.A. (1989). "Procedural Reform Study," InterUniversity Consortium for Political and Social Research: Criminal Justice Archive.
109. Baldus, D.C., Woodworth, G.G., Pulaski C.A. (1989). "Charging and Sentencing Study,"
Inter-University Consortium for Political and Social Research: Criminal Justice Archive.
Work in Process:
110. Woodworth, G.G., Statistical Issues in Recent Re-Analyusis of Capital Charging and
Sentencing Data, read at John Jay College, February 21, 2007.
111. Woodworth, G.G., “Bayesian Experimental Design of Sequential Clinical Trials.” To be
submitted to Statistics in Medicine, 2009.
112. Woodworth, G.G., Biostatistics II: Intermediate Bayesian Analysis, Proposal accepted
by John Wiley, December 2006, completion date May 1, 2009.

10

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Professional Honors and Awards:
1987 Harry Kalven prize of the Law and Society Association (with David Baldus and Charles
Pulaski).
1987 Iowa Educational Research and Evaluation Association, annual award "For Excellence in
the Field of Educational Research and Evaluation for Best Educational Evaluation
Study," (with Larry Hedges and James Shymansky).
1991 Gustavus Myers Center for the Study of Human Rights in the United States, selection of
Equal Justice and the Death Penalty as an outstanding book on the subject of human
rights (with David Baldus and Charles Pulaski).
1996 Elected Fellow of the American Statistical Association
Service Activities
Departmental Service:
University of Iowa Statistical Consulting Center:
Founder, Associate Director, Director (1973-1980)
Acting Director (1982-3)
Member of Steering Committee and Adviser (1984-present).
University Service:
Outside member of over thirty Ph.D. dissertation committees, 1973-present.
Woodworth, G.G., Lenth, R.V.L. (1982) “A Stratified Sampling Plan for Estimating
Departmental and University-Wide Administration Effort.”
University of Iowa, Basic Mathematics Committee, January 1983-84.
Statistics Advisor to the University of Iowa Journal of Corporation Law, 1984-85.
University of Iowa, Research Council, 1984-87, Chairman 1986-87.
University House Advisory Committee, 1986-87.
Chairman, Political Science Review Committee, 1988-89.
Interdisciplinary Ph.D. Program in Applied Mathematical Sciences, 1988-present.
University of Iowa, Judicial Commission, 1979-81, 1990-93.
University of Iowa, Liberal Arts Faculty Assembly, 1985-87, 1995-6.
Professional Service:
NAACP Legal Defense and Education Fund, 1980-3: Statistical Analysis of the Georgia
Charging and Sentencing Study, Expert testimony in McCleskey vs. Zant (decided in the
U.S. Supreme Court).
ASA Law and Justice Statistics Committee, 1982-1987: Member of two methodological review
panels in Washington, DC. Organizer of two-day Workshop on Law and Justice Statistics,
August 1985.
ASA Visiting Lecturer Program, 1984-1988.
1984 Invited talk at Culver-Stockton College
1986 Invited talk at Moorhead State University
1988 Invited talk at Grinnell College

11

Exhibit G
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Invited Participant, 1984, Planning Session for Florida Capital Charging and Sentencing Study,
Florida Office of Public Defender, Richard H. Burr, Esq.
Editor, Proceedings of the Third Workshop on Law and Justice Statistics, American Statistical
Association, 1985.
Invited Panelist, 1986 Law and Society Association Annual Meeting, Panel discussion of
current state of capital sentencing research.
Invited Speaker, 1987 Seminar-Workshop on Meta-Analysis in Research, University of Puerto
Rico, San Juan, Faculty of Education, Department of Graduate Studies.
Associate Editor, Evaluation Review, 1983-1986.
Baldus, D., Woodworth, G.G., Pulaski, C.A. (1989). Oral Testimony before the U.S. Senate
Judiciary Committee (presented by D. Baldus).
Invited Participant, ASA Media Experts Program (1989).
Statistical Consultant to Special Master, David Baldus. State of New Jersey, Administrative
Office of Courts -- Proportionality Review System. 1989-present.
ASA Law and Justice Statistics Committee, second appointment, 1993-95.
Baldus, D., Woodworth, G.G. (1993), “An Iowa Death Penalty System in the 1990’s and
Beyond: What Would it Bring?” Report submitted to the Senate Judiciary Committee, Iowa
Legislature, February 24, 1993.
Baldus, D., MacQueen, J.C., Woodworth, G.G. (1993), “An Empirically-Based Methodology
for Additur/Remittitur Review and Alternative Strategies for Rationalizing Jury Verdicts,”
Report prepared for the Research Conference on Civil Justice Reform in the 1990’s.
Baldus, D.C., Woodworth G.G. (1995), “Proportionality Review and Capital Charging and
Sentencing: A Proposal for a Pilot Study,” Commonwealth of Pennsylvania, Administrative
Office of Courts.
Session Chair, Joint Statistical Meeting, Minneapolis, 2005.
Session Discussant, 2006 FDA/Industry Statistics Workshop, Washington, DC, September 2006
Invited Speaker at a one-day conference on Race and Death Penalty Research, at John Jay
College of Criminal Justice, CUNY, February 21, 2007.
Refereeing (since 1980):
1980: Journal of the American Statistical Association
1982: Journal of Educational Statistics
1983: Journal of Statistical Computation and Simulation
Annals of Mathematical Statistics
Evaluation Review (associate editor)
1984: Transportation Research
Law and Society Review
American Journal of Mathematical and Management Sciences
Journal of Educational Statistics
Evaluation Review (associate editor)
1985: Edited Proceedings of 3rd Workshop on Law and Justice Statistics
Evaluation Review (associate editor)
1986: Psychological Bulletin
National Science Foundation
Evaluation Review (associate editor)
1987: J. Amer. Statist. Assoc.

12

Exhibit G
Page 192

1988: Science (ca. 1988)
1990: Annals of Otology, Rhinology & Laryngology
American Speech-Language-Hearing Association
Macmillan Publishing Company
Survey Methodology Journal
1991: International Journal of Methods in Psychiatric Research
1993: Multivariate Behavioral Research
1994: International Journal of Methods in Psychiatric Research
1995: SIAM Review
Duxbury Press
Acta Applicandae Mathematicae
1996: American Journal of Speech-Language Pathology
1998: Duxbury Press
2001: John Wiley and Sons, Inc.
2002: Addison-Wesley
2004: J. Amer. Statist. Assoc.
2005 J. Amer. Statist. Assoc.

13

Exhibit G
Page 193

Extramural Consulting and Pro Bono Work:
American College Testing
Allergan
Beling Consultants, Moline IL
Bettendorf Iowa AEA
Coerr Environmental, Chapel Hill
Defender Association of Philadelphia
Death Penalty Information Center
Florida State Public Defender's Office
Gas Research Institute.
Hoechst Marion Roussel / Aventis
Guidant Corporation
HON Corporation
Legal Services Corporation of Iowa
Iowa State Attorney General's Office

Kaiser Aluminum
Electric Power Research Institute
NAACP Legal Defense and Education Fund
National Research Council
Supreme Court of Nebraska
Pittsburgh Plate Glass
Rhone-Poullenc
Stanford Law School
StarForms
Supreme Court of New Jersey
Vigertone Ag Products
Westinghouse Learning Corporation
WMT news department

Intramural Consulting:
I consult almost on a weekly basis with colleagues and students throughout the University,
including at one time or another (but not limited to): Audiology, Biology, Exercise Physiology,
Geology, Law, Marketing, Nursing, Otolaryngology, Physics, Psychology, Psychiatry, Science
Education, the Iowa Driving Simulator, and the National Advanced Driving Simulator.
Expert testimony / depositions:
Robert R. Lang, Esq. (Legal Services Corporation of Iowa)
1982 Ruby vs. Deere (gender discrimination)
Mark R. Schuling, Iowa Assistant Attorney General.
1984 Burlington Northern Railroad Co. vs. Gerald D. Bair, Director (taxation)
Teresa Baustian (Iowa Asst. Atty. General - Civil Rights Division)
1988 Howard vs. Van Diest Supply Co. (age discrimination)
Walter Braud, Esq.
1988 Hollars et. al. vs. Deere & Co. et. al. (gender discrimination)
Mark W. Schwickerath, Esq.
1988 Schwickerath vs. Dome Pipeline, Inc. (effects of chemical spill)
Richard Burr, Esq.
1990 Selvage vs. State of Florida (capital sentencing)
Amanda Potterfield, Esq.
1990 Reed vs. Fox Pool Corporation (product liability)
1994 State of Iowa vs. Dalley (forensic identification via DNA)
Jerry Zimmerman, Esq.
1991 George Volk Case (age discrimination)
1993 Rasmussen vs. Rockwell (age discrimination)
1994 Hans vs. Courtaulds (age discrimination)
Thomas Diehl, Esq.
1992 State of Iowa vs. William Albert Harris (jury composition)
Diane Kutzko, Esq. (Iowa State Bar Association)
1995 Consultation on the validity of the Iowa bar exam.
John Allen, Esq.
1995 Buchholz vs. Rockwell (age discrimination)
Michael M. Lindeman, Esq.
1995 Beck vs. Koehring (age discrimination)
Timothy C. Boller, Esq.

14

Exhibit G
Page 194

1995 Larh vs. Koehring (age discrimination, see refereed publications, item 68)
Thomas C. Verhulst
1995 Carr vs. J.C. Penny (racial discrimination)
J. Nick Badgerow, Esq.
1995 Zapata et. al., vs. IBP, Inc. (racial/national origin discrimination)
David J. Goldstein, Esq., Faegre and Benson, Minneapolis
1999 Payless Cashways, Inc. Partners v. Payless Cashways (age discrimination)
Catherine Ankenbarndt, Deputy First Assistant Wisconsin State Public Defender
2001 Civil commitment hearing of Keith Rivas (Prediction of Sexual Recidivism)
Michael B. McDonald, Assistant Florida Public Defender
2001 Frye hearing in re Actuarial Prediction of Sexual Recidivisim (see refereed
publications, item 69).
Greg Bal, Assistant Iowa Public Defender
2001 Civil commitment hearing of Lanny Taute (Prediction of Sexual Recidivism,
Harley C. Erbe, Esq. Walker Law Firm, Des Moines
2002 Campbell et al. v. Amana Company (Age Discrimination)
Texas State Counsel for Offenders, Huntsville, TX
2002 Daubert hearing in re Actuarial Prediction of Sexual Recidivisim
Michael H. Bloom, Assistant Wisconsin Public Defender
2002 Detention of Morris F. Clement, Forest County Case No. 00 CI 01
(Prediction of Sexual Recidivism)
Federal Court Division, Defender Association of Philadelphia, Capital Habeas Corpus Unit
2002 Petitioner Reginald Lewis (racial discrimination)
2006 Commonwealth v. Baker (jury composition)
Stephen Snyder, Esq., Grey Plant Mooty Mooty and Bennett.
2006-7 (with Jay Kadane)

15

Exhibit G
Page 195

Appendix B: Tabulations of Special Circumstances.

1
2

Part 1. Analysis of California Supplementary Homicide Reports Data

3

1

SHR Data

4

2
3
4
5
6
7
8

Felony Murder
Multiple Vics.
Police Vic.
Sniping
Gang Related
Child Killing
Other

8

9

9

10

10

11

11

12

12

13

13

14

Sole SC or w/ other(s)
Count
Percent7
11055
14.5
6458
8.5
141
0.2
190
0.3
11231
14.7
2519
3.3
< 286
< 0.4

all Capital
minus sole
Sniping
plus sole LIW
minus sole gang
related, 01Jan98
to 07Mar00
equals adjusted
Capital
Total

5
6
7

14

Sole Special Circ.
Count Percent
10007
13.1
4143
5.4
141
0.2
132
0.2
10284
13.5
2061
2.7
< 230
< 0.3

Calculations

Typical: (felony murder)
11055 = 28790 x
0.38408
10007 = 28790 x
0.34769

2879010

37.8

132

0.2

132 = 28790x0.004611

11411

15.0

11411 = 76225x0.1512

1753

2.3

2.3 = 2.50x0.0.90613
1753 = 0.023 x 76225

38316

50.3
76225 = 28790/33.7714

76225

Part 2. Analysis of the Narrowing Study of California M1, M2, and VM Convictions
Sole SC or w/ other(s)
Count
Percent
6488
23.6
1602
5.8
0
0.0
8020
29.2
2607
9.5
4769
17.4

15

15

M1, M2, VM Convictions

16

16
17
18
19
20
21

Felony Murder
Multiple Victims
Police Victim
Lying in Wait
Gang related
Other

22

any SC

16417

23

Total

Sole SC
Count Percent
3640
13.3
559
2.0
0
0.0
4129
15.0
691
2.5
1822
6.6

27453

17
18
19
20

59.8

10841

39.5

21
22
7

Percent of total SHR cases (76225)

8

Table 2, row 6, Percent Felony Murder

24

9

Table 3, row 6, Percent Felony Murder Only

25

10

Table 2, row 6, Total N of Capital Homicides

11

Table 3, row 6, Percent Sniper Only

12

Appendix B, part 2, table row 19, Sole SC Percent

27

13

0.906 = (days between 01Jan78 and 08Mar00)/(days between 01Jan78 and 30Jun02) = 8102/8946

28

14

Table 1, last row, Percent of UCR Homicides that are Death Eligible (Capital)

23

26

Amended Declaration of George Woodworth, Ph.D (with 11/04/10 corrections)

Exhibit G
Page 196

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT H
DECLARATION OF STEVEN F. SHATZ

26
27
28

Exhibit H
Page 197

Exhibit H
Page 198

Exhibit H
Page 199

Exhibit H
Page 200

Exhibit H
Page 201

Exhibit H
Page 202

Exhibit H
Page 203

Exhibit H
Page 204

Exhibit H
Page 205

Exhibit H
Page 206

Exhibit H
Page 207

Exhibit H
Page 208

Exhibit H
Page 209

Exhibit H
Page 210

Exhibit H
Page 211

Exhibit H
Page 212

Exhibit H
Page 213

Exhibit H
Page 214

Exhibit H
Page 215

Exhibit H
Page 216

Exhibit H
Page 217

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION
ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT I
DECLARATION OF GERALD UELMAN

26
27
28
Exhibit I
Page 218

DECLARATION OF GERALD F. UELMEN

1
2

I, Gerald F. Uelmen, declare as follows:

3

1.

I am a Professor of Law at Santa Clara University School of Law, Santa Clara,

4

California, where I served as Dean of the Law School from 1986 to 1994. Prior to that, I was a

5

Professor of Law at Loyola Law School, Los Angeles, California from 1970 to 1986.

6

Throughout my 39 year teaching career, I have taught courses in Criminal Law and Criminal

7

Procedure, and have closely followed the death penalty law and jurisprudence of California.

8

From 2004 to 2008, I served as Executive Director of the California Commission on the Fair

9

Administration of Justice, and drafted the Commission’s Report on the California Death

10

Penalty Law. I have conducted research and written law review articles on the administration

11

of the death penalty law in California, spoken at numerous seminars on this topic, and offered

12

testimony as an expert in several death penalty cases.

13

2.

My curriculum vita is attached to this declaration as Appendix A.

14

3.

I provide this declaration at the request of counsel for Mr. Troy Ashmus

15

regarding the salient legislative history of California’s death penalty procedures since 1972. In

16

the course of preparing this declaration, I have reviewed substantial legal, legislative, and

17

historical material. A list of the material that I consulted is attached to this declaration as

18

Appendix B.
4.

19

Prior to 1972, all first-degree murders codified in former California Penal Code

20

section 1891 were punishable by death under California law.2 Former Cal. Penal Code § 190

21

(West 1970); People v. Anderson, 6 Cal. 3d 628, 652 (1972).

22
23
24

1

All further statutory references are to the California Penal Code unless otherwise specified.
In addition to first-degree murder, the following crimes were also punishable by death at this
time: treason (Pen. Code § 37), perjury in capital cases (Pen. Code § 128), kidnaping for ransom or
robbery with bodily harm to the victim (Pen. Code, § 209), train wrecking (Pen. Code, § 219), malicious
assault by life prisoner (Pen. Code, § 4500), explosion of destructive devices causing great bodily injury
(Pen. Code § 12310), and sabotage resulting in death or great bodily injury (Mil. & Vet. Code § 1672,
subd. (a)). The death penalty was mandatory for the treason and perjury offenses and for malicious
assault by a life prisoner if a non-inmate victim died and discretionary for first-degree murder and the
other offenses. People v. Anderson, 6 Cal. 3d 628, 652 (1972).
2

25
26
27
28

1

Exhibit I
Page 219

5.

1

In 1972, the California Supreme Court invalidated the California death penalty

2

scheme, holding that it violated the state constitution’s prohibition against cruel or unusual

3

punishments. People v. Anderson, 6 Cal. 3d 628 (1972). California voters swiftly reacted by

4

passing Proposition 17 in November 1972, which amended the California Constitution to

5

provide that capital punishment is not unconstitutional, overturning the Anderson decision.

6

Meanwhile, in June 1972, the United States Supreme Court announced several opinions in

7

Furman v. Georgia, 408 U.S. 238 (1972), collectively interpreted as holding that the death

8

penalty may not be imposed under sentencing procedures that create a substantial risk that it

9

will be inflicted in an arbitrary and capricious manner, thus the statute must provide a

10

“meaningful basis for distinguishing the few cases in which it is imposed from the many cases

11

in which it is not.” Gregg v. Georgia, 428 U.S. 153, 188 (1976) (quoting Furman v. Georgia,

12

408 U.S. at 313 (White, J., concurring)).
6.

13

In response to Proposition 17 and Furman, the California Legislature enacted a

14

death penalty statute in 1973 that mandated imposition of the death penalty for individuals

15

found guilty of first-degree murder when one of ten special circumstances were present.3 In

16

1976, the California Supreme Court invalidated this mandatory statute in light of the

17

intervening United States Supreme Court ruling in Woodson v. North Carolina, 428 U.S. 280

18

(1976), which held that mandatory death penalty schemes violate the Eighth Amendment of the

19

United States Constitution. Rockwell v. Superior Court, 18 Cal. 3d 420 (1976).
7.

20

In 1977, the California Legislature again responded to the decisions of the

21

United States Supreme Court by enacting a new death penalty statute with the passage of

22

Senate Bill 155, introduced on January 19, 1977, by then-Senator George Deukmejian.4 Then-

23

Senator John Briggs was a co-author of this legislation.5 On May 27, 1977, Senate Bill 155 as

24
25
26
27
28

3

Petitioner’s Exhibit (Exh.) 139 at 7-12 (1973 Cal. Stat. c. 719, §§ 1- 5 (S.B. 450)).
Exh. 139 at 82-95 (1977 Cal. Stat. c. 316, §9 (S.B. 155), effective August 11, 1977); Exh. 139 at
96-97 (Senate Final History, 1977 Cal. Stat. c. 316, §9 (S.B. 155), effective August 11, 1977).
5
Exh. 139 at 96-97.
4

2

Exhibit I
Page 220

1

subsequently amended, was enrolled and transmitted to then-Governor Edmund G. Brown Jr.

2

for his signature.6

3

8.

The 1977 death penalty bill was drafted to restore discretion to the sentencer to

4

impose death upon a finding of first-degree murder when one of twelve legislatively drawn

5

special circumstances was present.7 In enacting Senate Bill 155, the California Legislature

6

expressly considered the constitutional parameters of a valid death penalty statute as defined by

7

United States Supreme Court jurisprudence.8 In preparation for considering Senate Bill 155

8

and other capital punishment bills before it in early 1977, the Legislature called upon

9

constitutional law experts to educate its members about the recent United States Supreme Court

10

decisions addressing the constitutionality of the death penalty, including concerning the Eighth

11

Amendment narrowing requirement.9
9.

12

On May 27, 1977, Governor Brown vetoed Senate Bill 155 based upon his

13

moral opposition to the death penalty.10

14

Governor Brown’s veto and Senate Bill 155 went into effect on August 11, 1977,11 the veto

15

override process was highly controversial, driven in many respects by the political aspirations

16

of Senator John Briggs, an announced candidate for Republican nomination for Governor of

17

California for the June 1978 primary election.
10.

18

Although the Legislature ultimately overrode

Although Senator Briggs supported capital punishment, helped introduce Senate

19

Bill 155, and had voted for its passage initially, he ultimately attempted to block its enactment,

20

ostensibly to use capital punishment as a political issue during the 1978 gubernatorial race.12

21

Prior to the bill’s enactment, Senator Briggs threatened to uphold the governor’s promised veto,

22

6

23
24
25
26
27
28

Exh. 139 at 97-97.
Exh. 139 at 82-95.
8
See e.g. Exh. 139 at 15-79 (Constitutional Issues Relative to the Death Penalty: Special Hearing
of the California Assembly Committee on Criminal Justice, January 24, 1977 (transcript)).
9
See e.g. Exh. 139 at 19-23, 57-63.
10
Exh. 139 at 96-97; Exh. 139 at 81 (Press Release, Office of Governor Edmund G. Brown (May
27, 1977)); Exh. 140 at 4-6 (Death Penalty Poll Casts Doubt On Veto Override, L.A. Daily Journal,
March 29, 1977, at 1, 4).
11
Exh. 139 at 96-97.
12
Exh. 140 at 4-6; Exh. 140 at 18-19 (Override Vote Set Today on Death Penalty Vote, L.A.
Daily Journal, June 23, 1977, at 1).
7

3

Exhibit I
Page 221

1

admitting that he would be “delighted” to see a death penalty proposition on the November

2

1978 ballot,13 and thus preventing the incumbent Governor Brown from “duck[ing] th[e] issue”

3

of capital punishment in the election.14 After the governor vetoed Senate Bill 155, Senator

4

Briggs reportedly announced that he would abstain from voting in the override proceedings

5

even if his was the crucial vote, and that regardless of the outcome of the override proceedings,

6

he would attempt to qualify an “even tougher” death penalty initiative for the November 1978

7

ballot.15

8

explained his strategy concerning his planned initiative: “When you have a law on the books

9

you remove it as an issue . . . I don’t want to remove it as an issue.”16 Senator Briggs had also

10

announced his desire to “send [Governor Brown] out naked in November” on the issue of

11

capital punishment.17
11.

12

Senator Briggs, then the only announced Republican candidate for governor,

Political leaders distanced themselves from Senator Briggs and his strategy

13

during the override process, accusing Briggs of grandstanding, and dismissing him as a “fellow

14

who is seeking publicity.”18 Senator Briggs was publically criticized for his attempts to thwart

15

the veto override. For example, former Governor Ronald Reagan warned that attempts to

16

bypass the override process “could bring on charges of opportunism later.”19

17

Angeles County Sheriff Peter Pitchess released a letter to Senator Briggs stating: “I am shocked

18

that you, or any other human being, would try to make a cheap partisan show out of a matter of

19

such grave consequence. I do not intend to stand idly by while you allow the death penalty

20

issue, a matter of critical importance to the safety of our citizens, to degenerate into a sideshow

Then-Los

21
22
23
24

13
14

Exh. 140 at 6.
Exh. 140 at 12 (Briggs Nixes Death Penalty Vote Override, The Recorder, June 2, 1977, at 1,

7).
15

25
26
27
28

Exh. 140 at 12.
Exh. 140 at 12-14.
17
Exh. 140 at 7 (Death Bill Passed By Senate on Slender Two-Vote Margin, L.A. Daily Journal,
April 1, 1977, at 1).
18
Exh. 140 at 12.
19
Exh. 140 at 15, 17 (Reagan Backs Override Of Death Veto, The Recorder, June 16, 1977, at 1,
6).
16

4

Exhibit I
Page 222

1

to dramatize your own political ambitions.”20 As threatened and arguing that Senate Bill 155

2

was not sufficiently tough, Senator Briggs abstained from voting in the override proceeding,

3

temporarily resulting in the override being one vote short of passage in the Senate.21 The

4

passing vote was ultimately cast by another member of the Senate, and the veto override passed

5

in the Assembly soon thereafter.22
12.

6

Fear of a “far broader” death penalty ballot initiative lacking the constitutional

7

protections of Senate Bill 155 drove pivotal votes in the process of legislatively enacting Senate

8

Bill 155.23 Assemblyman Henry Mello, who cast the necessary “aye” vote after the bill

9

initially fell one vote short in the Assembly, reported that although he was “philosophically

10

opposed” to capital punishment, he feared a death penalty initiative drafted by law enforcement

11

groups would be “far broader and far worse” than the legislatively drawn Senate Bill 155.24

12

Similarly, concerning his “difficult and painful vote” to enact Senate Bill 155, Assemblyman

13

Tom Bane explained that “I believe if this bill is not enacted the eventual result will be far

14

worse. The people of California will support an initiative which will not have the protections

15

of SB 155.”25
13.

16

In November 1977, approximately three months after Senate Bill 155 went into

17

effect, Senator Briggs and the law enforcement-dominated group he co-chaired, Citizens for an

18

Effective Death Penalty, launched a ballot initiative campaign in order to enact “the nation’s

19

toughest, most effective death penalty law”26 through Proposition 7, which became known as

20

the “Briggs Initiative.”27 Senator Briggs hired Donald Heller, a former Assistant United States

21

20

22
23
24
25
26
27
28

Exh. 140 at 22 (Pitchess Scores Solon On Move To Defeat Death Bill, L.A. Daily Journal, June
28, 1977, at 4).
21
Exh. 140 at 20-21 (Close Senate Override On Death Penalty, The Recorder, June 24, 1977, at 1,
6).
22
Exh. 139 at 96-97; Exh. 140 at 21.
23
Exh. 140 at 9 (Assembly Passes Death Penalty Bill, The Recorder, May 17, 1977, at 1, 6).
24
Exh. 140 at 9.
25
Exh. 139 at 80 (Letter from Tom Bane, Assemblyman, California Assembly, to Mark Waldman,
Legislative Counsel, American Civil Liberties Union (May 23, 1977)).
26
Exh. 139 at 102 (California Voters Pamphlet, General Election, Nov. 7, 1978, at 32-46).
27
See Exh. 140 at 24 (‘Insurance Death Penalty’ Drive Planned, The Recorder, Nov. 3, 1977, at
1); Exh. 140 at 26 (George Skelton, Briggs Launches Death Penalty Initiative Drive, L.A. Times, Nov.
10, 1977, at 3, 20).
5

Exhibit I
Page 223

1

Attorney who had never tried a capital case, to draft the proposed statute.28 The Briggs

2

Initiative included 27 special circumstances, more than double the number included in the 1977

3

law; substantially broadened the definitions of special circumstances that were included in the

4

1977 law; eliminated the across-the-board intent to kill requirement of the 1977 law; and

5

expanded death-eligibility for accomplices.

6

California Death Penalty Scheme: Requiem for Furman, 72 N.Y.U.L. Rev. 1283, 1311-13

7

(1997); Cal. Penal Code § 190.2 (West 1988).
14.

8

See Steven F. Shatz & Nina Rivkind, The

Senator Briggs admitted that he intended to use his death penalty initiative to

9

further his own political career.29 At a press conference announcing the unveiling of the

10

initiative campaign, Senator Briggs announced: “I intend to make this a very big part of my

11

gubernatorial campaign, I don’t mind telling you”30 and reportedly stated that he planned to

12

seek necessary petition signatures on campaign stops.31 In promoting his initiative, Senator

13

Briggs charged that the death penalty bill enacted by the Legislature in 1977 was “weak and

14

unconstitutional,”32 contained “ridiculous” limitations on its application,33 and did not

15

adequately protect “the average citizen” from murderers.34 Senator Briggs said of the initiative

16

measure “This is the peoples’ death penalty bill . . . [t]he other was the Legislature’s,”35 and

17

that the people of California had been “. . . fooled one more time by the politicians into

18

thinking they have death penalty protection when in fact they don’t.”36 The Briggs-chaired

19
20
21
28

22
23
24
25
26
27
28

Exh. 140 at 27 (New Death Penalty Proposal Unveiled, The Recorder, November 10, 1977, at
1); Exh. 140 at 49 (Dan Morain, California Debate: Agony Over Resuming Executions, L.A. Times,
Aug. 18, 1985 at 1).
29
Exh. 140 at 26.
30
Exh. 140 at 26.
31
Exh. 140 at 27.
32
Exh. 140 at 26.
33
Exh. 140 at 29 (Richard Bergholz, Briggs Hits ‘Weak’ Death Penalty Law, L.A. Times, Feb. 14,
1978, at A21).
34
Exh. 140 at 26.
35
Exh. 140 at 27.
36
Exh. 140 at 26.
6

Exhibit I
Page 224

1

sponsoring group of the initiative claimed that Senate Bill 155 did not go far enough, reserving

2

capital punishment only in some circumstances surrounding the crime of murder.37
15.

3

Senator Briggs’ ballot petition materials targeted the fears of Californians. In a

4

mailing sent to the state’s citizens seeking petition signatures for the Briggs Initiative, Senator

5

Briggs informed voters that: “Your life is being threatened by the hardened, violent criminals

6

who are stalking the streets of your community . . .” and that “If a bloodthirsty criminal like

7

Charles Mason had you or your family brutally murdered, that criminal would not face the

8

death penalty under current California law. In fact, he could be back on the streets in 7 years!”

9

and promised that his law would “give Californians the protection of a tough, effective death

10

penalty through the initiative process.”38
16.

11

The campaign and ballot materials generated for California voters by Senator

12

Briggs and the Briggs Initiative sponsors state that the proposed death penalty statute was

13

intended to expand the death penalty to apply to “every murderer.”39 In the argument in favor

14

of Proposition 7 in the ballot pamphlet, voters were told that “the death penalty law passed by

15

the State Legislature was as weak and ineffective as possible,” listing certain types of murders

16

not covered by the 1977 law that would be covered by the Briggs Initiative, and that if passed,

17

the Briggs Initiative would “give every Californian the protection of the nation’s toughest, most

18

effective death penalty law.”40 The ballot argument also stated that

19

. . . if you were to be killed on your way home tonight simply
because the murderer was high on dope and wanted the thrill, that
criminal would not received the death penalty. Why? Because the
Legislature's weak death penalty law does not apply to every
murderer. Proposition 7 would.41

20
21
17.

22
23

Members of the law enforcement community and those charged with

prosecuting offenders of the laws of California expressed constitutional concerns about the

24
37

25
26
27
28

Exh. 140 at 24; Exh. 139 at 98 (Letter from Senator John V. Briggs, Co-Chairman, Citizens for
an Effective Death Penalty, to Concerned Citizen (undated)).
38
Exh. 139 at 98 (emphasis in original); see also Exh. 140 at 30 (W.E. Barnes, Sen. Briggs: ‘Your
Life is in Danger’, S.F. Examiner & Chronicle, April 2, 1978, at A10).
39
Exh. 139 at 102.
40
Exh. 139 at 102.
41
Exh. 139 at 102. (Emphasis added).
7

Exhibit I
Page 225

1

breath of the proposed initiative, with its expansive list of death-eligible crimes. Lowell

2

Jensen, then-Alameda County District Attorney, stated that the Legislature’s 1977 death

3

penalty bill “is about as far as you can go in line with Supreme Court decisions”42 and thus

4

Proposition 7 is “vulnerable to legal attack.”43 William O’Malley, then-Contra Costa County

5

District Attorney, stated that “Prop. 7 is too broad to stand a court test. It tries to cover all the

6

bases and that’s where the trouble is.”44 Joseph Freitas Jr., then-San Francisco County District

7

Attorney, warned that “Proposition 7 has not been carefully prepared”45 and that “California

8

voters should understand that they are being cruelly manipulated by a man for whom the issue

9

of life and death itself is just so much fuel for his political machine.”46 In urging defeat of

10

Proposition 7, the California State Bar Conference of Delegates described the Briggs Initiative

11

as “unnecessary, unlawyerlike and irrational.”47 Citing that the proposition would “radically

12

expand” the types of murder punishable by death, the Board of Directors of the Barristers Club

13

of San Francisco unanimously voted to oppose Prop. 7, calling it “unnecessary, poorly drafted

14

and irrational.”48

15

18.

The Briggs Initiative was approved by California voters on November 7, 1978,

16

and went into effect on November 8, 1978, supplanting the 1977 death penalty statute enacted

17

by the Legislature. Proposition 7, § 6, approved Nov. 7, 1978, eff. Nov. 8, 1978. The statute

18

enacted by the Briggs Initiative significantly expanded both the number of death-eligible

19

crimes, or special circumstances, as well as the scope of existing special circumstances. As

20

acknowledged by the California Supreme Court, the special circumstances set forth in Penal

21

Code section 190.2 are intended to serve the constitutionally required narrowing function in the

22
23
24
25
26
27
28

42

Exh. 140 at 37 (Gayle Montgomery, District Attorneys Troubled by Prop. 7, Oakland Tribune,
Oct. 24, 1978, at C11-12).
43
Exh. 140 at 41 (Editorial, We Oppose Proposition 7, Oakland Tribune, Oct. 28, 1978, at 20).
44
Exh. 140 at 41.
45
Exh. 140 at 40 (Major S.F. Opponents of Prop. 7, S.F. Chronicle, Oct. 26, 1978, at 6).
46
Exh. 140 at 42 (District Attorney Freitas Comes Out Against Prop. 7, L.A. Daily Journal, Nov.
2, 1978, at1).
47
Exh. 140 at 31 (Bob de Carteret and C. Wong, State Bar Delegates Urge Defeat of Prop. 7
Initiative, L.A. Daily Journal, Sept. 17, 1978, at 1).
48
Exh. 140 at 32 (Barristers Vote ‘No’ On Prop. 7, The Recorder, Oct. 10, 1978, at 1, 11).
8

Exhibit I
Page 226

1

California death penalty scheme. People v. Visciotti, 2 Cal. 4th 1, 74 (1992); People v.

2

Bacigalupo, 6 Cal. 4th 457, 467-68 (1993).
19.

3

The Briggs Initiative contained typographical or other errors, as well as legal

4

ambiguities and unconstitutional provisions. According to then-California Supreme Court

5

Justice Cruz Reynoso, “(Briggs) had bragged he would have the toughest death penalty law in

6

the world, and he did not pay any attention to the guidelines set down by the U.S. Supreme

7

Court,” resulting in the California Supreme Court being “forced to overturn cases to clarify the

8

law.”49 Former California Supreme Court Justice Joseph Grodin explained that in light of the

9

Briggs Initiative, the Court’s role in addressing death penalty cases had been “rendered

10

particularly difficult by ambiguities in the death penalty statute.”50 Acknowledging the drafting

11

errors contained in the death penalty law he enacted, such as inclusion of the felony murder

12

special circumstance of killing in the commission of arson in violation of Penal Code section

13

447, which had been repealed in 1929 (1929 Cal. Stat. c. 25, 47, § 6), Senator Briggs himself

14

introduced legislation during the 1979-1980 Legislative Regular Session to “correct” several

15

drafting errors in the statute in an effort to “clean up the death penalty initiative.”51 Opponents

16

of this proposed legislation pointed out the “irony” of Senator Briggs’ proposed bill, which

17

requested that the Legislature make changes in the initiative measure Senator Briggs sponsored

18

“in order to avoid the legislative process,” noting that many of the errors contained in the

19

initiative “undoubtedly” would not have occurred had Senator Briggs not sought to ignore that

20

process.52
20.

21
22

In the years following the enactment of the Briggs Initiative, the California

judiciary was required to resolve ambiguities in the death penalty statute. In People v. Engert,

23
24
25
26
27
28

49

Exh. 140 at 53 (‘Blame Briggs, Not High Court’ For Reversals, The Recorder, Aug. 19, 1986, at

3).
50

Exh. 140 at 49.
Exh. 139 at 110-15 (California Assembly Committee on Public Safety, Bill Analysis, Senate
Bill No. 2054 (1979-80 Reg. Sess.) as amended May 6, 1980; Senate Committee on Judiciary, Bill
Analysis, Senate Bill No. 2054 (1979-80 Reg. Sess.) as introduced).
52
Exh. 139 at 116 (Letter to John Briggs, Senator, California Legislature, from James R. Tucker,
Legislative Advocate, American Civil Liberties Union (June 13, 1980)).
51

9

Exhibit I
Page 227

1

31 Cal. 3d 797 (1982), the California Supreme Court declared that the special circumstance

2

defined in former Penal Code section 190.2(a)(14) that the murder was “especially heinous,

3

atrocious, or cruel manifesting exceptional depravity” was unconstitutionally vague and thus

4

struck the provision. In Carlos v. Superior Court, 35 Cal. 3d 131 (1983), the California

5

Supreme Court construed Penal Code section 190.2(b) to require a finding of intent to kill

6

before a defendant could be subject to a felony murder special circumstance under former Penal

7

Code section 190.2(a)(17), resolving ambiguity in the statute concerning the fundamental issue

8

of death-qualifying mental state culpability to avoid potential constitutional concerns.

9

People v. Turner, 37 Cal. 3d 302 (1984), the Court clarified that under Carlos, the intent to kill

10

requirements in former Penal Code section 190.2(b) applied to both actual killers and

11

accomplices and applied to all special circumstances set forth in 190.2(a) other than the prior

12

murder special circumstance (§ 190.2(a)(2)). In People v. Bigelow, 37 Cal. 3d 731, 750 (1984),

13

citing to the “vague and broad generalities” of the language of the Briggs Initiative generally

14

and the financial gain special circumstance (§ 190.2(a)(1)) specifically, the Court adopted a

15

limiting construction requiring that the victim’s death be an essential pre-requisite to the

16

financial gain sought by the defendant for this special circumstance to apply. The Bigelow

17

Court also held that the conjunctive language of the kidnap felony murder special circumstance

18

in former section 190.2(a)(17)(ii) as drafted, specifying “[k]idnapping in violation of Sections

19

207 and 209,” was a careless drafting error and that the intent of the provision should be

20

construed to permit a special circumstance finding if the defendant was convicted of

21

kidnapping under either section 207 or 209. Id. at 755-56. In People v. Davenport, 41 Cal. 3d

22

247 (1985), the Court narrowly construed the torture murder special circumstance (former §

23

190.2(a)(18)) to save it from constitutional infirmity, by holding that the special circumstance

24

required proof of the intent to inflict torture. In People v. Weidert, 39 Cal. 3d 836 (1985), the

25

Court limited the witness killing special circumstance as enacted (former § 190.2(a)(10)) to

26

apply only to witnesses in criminal proceedings, to the exclusion of juvenile proceedings.

27

During the initial period following the enactment of the statute, the California Supreme Court

28
10

Exhibit I
Page 228

In

1

issued several other rulings concerning the application of the Briggs Initiative on issues other

2

than those directly pertaining to the special circumstances.
21.

3

By the mid 1980s, the California Supreme Court had reversed the vast majority

4

of death sentences in the cases that came before it.53 California District Attorneys, Sheriffs,

5

Chiefs of Police, and politicians who supported capital punishment harnessed their collective

6

outrage at the California Supreme Court’s failure to affirm death sentences obtained under the

7

Briggs Initiative by campaigning to oust Supreme Court Chief Justice Rose Bird and Associate

8

Justices Cruz Reynoso and Joseph Grodin in the 1986 judicial retention elections.54 This

9

coalition joined forces under the name “Californians to Defeat Rose Bird,”55 and made claims

10

in the highly publicized campaign such as that “The majority of the Bird Court will not allow

11

anyone in California to be executed regardless how perfect the trial”56 and that because these

12

justices are “largely responsible for overturning 39 of 42 death sentences which they have

13

decided,” voters were encouraged to “think about brutal killers who live to celebrate another

14

Christmas because the Rose Bird Court has allowed them to escape their just punishment.”57

15

This unprecedented election, the results of which were driven by the perception that these

16

justices were soft on crime and did not adequately enforce the death penalty, resulted in the

17

three challenged justices being removed from the California Supreme Court.
22.

18

With newly-installed justices on the bench headed by former Chief Justice

19

Malcolm Lucas, the California Supreme Court overruled Carlos v. Superior Court, which

20

narrowly construed intent to kill requirements of the Briggs Initiative, in People v. Anderson,

21

43 Cal. 3d 1104 (1987). The newly comprised Court otherwise broadly interpreted issues that

22

came before it concerning the application of the special circumstances and the statute generally,

23

and paved the way for continued expansion of the death penalty. For example, the Court

24
25
26
27
28

53

See Exh. 139 at 117-18, 131-33 (Miscellaneous Campaign Materials: Californians to Defeat
Rose Bird (1985-1986)).
54
See Exh. 139 at 117-33.
55
Exh. 139 at 123-26.
56
Exh. at 129.
57
Exh. at 133.
11

Exhibit I
Page 229

1

broadly interpreted the lying in wait special circumstance by holding that the “concealment”

2

element of lying in wait can be satisfied by a defendant’s “concealment of purpose” even when

3

there is no attempted or actual physical concealment involved. People v. Morales, 48 Cal. 3d

4

527, 554-55 (1989). Prior to 1981, the Court consistently applied lying in wait to cases in

5

which the defendant physically concealed him or herself for some period of time before

6

attacking the victim. See Webster v. Woodford, 369 F.3d 1062, 1073 (9th Cir. 2004). Soon

7

after Rose Bird and her colleagues were removed from the California Supreme Court, the

8

Court’s affirmance rate in capital cases shifted dramatically. The California Supreme Court

9

reversed fifty-eight death sentences and upheld just four during Rose Bird’s decade on the

10

bench, while under her successor, Chief Justice Lucas, the Court affirmed sixty-four of the

11

eighty-nine capital appeals it reviewed in three years.58
23.

12

Since passage of the Briggs Initiative in 1978, the definition of first-degree

13

murder and the special circumstances have continually been expanded, further broadening the

14

pool of death-eligible crimes in California. In 1983, Penal Code section 189 was amended to

15

add murder perpetrated by means of knowing use of armor piercing bullets to the list of

16

statutory first-degree murders. 1982 Cal. Stat. c. 950, 3440, § 1 (S.B. 1342), eff. Sept. 13,

17

1982.
24.

18

The definition of first-degree murder and the special circumstances were further

19

expanded in 1990 with the passage of Proposition 115, effective June 6, 1990, known as the

20

“Crime Victims’ Justice Reform Act,” a central purpose of which was to “clarify, restore, and

21

overturn various Bird [C]ourt decisions which affect potential capital cases,”59 including those

22

that judicially narrowed or otherwise limited the application of the Briggs Initiative.60 The

23

voter ballot arguments in favor of Proposition 115 explained that Proposition’s 115’s “’Bird

24

58

25
26
27
28

Exh. 140 at 55 (Rebecca LaVally, The Death Penalty in California - Closing in on the First
Execution, California Journal, July 1, 1990).
59
Exh. 139 at 314 (Joint Hearing on Crime Victims Justice Reform Act, Proposition 115 on the
June 1990 Ballot: California Senate Committee on Judiciary and Assembly Committee on Public Safety,
December 11, 1989 (transcript, staff analysis, written testimony in support of and opposition to
initiative)).
60
See Exh. 139 at 617-36 (1990 Crime Victims Justice Reform Initiative, Proposition 115
Manual: State of California Department of Justice (1990)).
12

Exhibit I
Page 230

1

Court’ death penalty provisions improve our death penalty law and overturn decisions by Rose

2

Bird and her allies which made it nearly inoperative.”61 Proposition 115 was intended and

3

served to “expand” the definition of first-degree murder and the list of special circumstances.62
25.

4

Proposition 115 added the following types of first-degree felony murders Penal

5

Code section 189: kidnapping, sodomy, oral copulation, rape with a foreign object, and train

6

wrecking.63 It also added the mayhem felony murder and rape with a foreign object felony

7

murder special circumstances to Penal Code section 190.2(a)(17).64

8

expansions noted that prior to Proposition 115, the first-degree felony murders in section 189

9

and the felony murder special circumstances in section 190.2(a)(17) were “not the same” and

10

thus the measure was necessary to “conform” the list of first-degree felony murders and the

11

felony murder special circumstances.65 According to the State of California Office of the

12

Attorney General, the result of these expansions accomplished by Proposition 115 was to

13

“make all types of first degree felony murders subject to capital punishment.”66
26.

14

Proponents of these

Proposition 115 also broadened some existing special circumstances.

The

15

witness killing special circumstance defined in Penal Code section 190.2(a)(10) was expanded

16

to apply to witnesses in juvenile proceeding, nullifying the California Supreme Court’s ruling

17

to the contrary in People v. Weidert, 39 Cal. 3d 836 (1985).67 The torture murder special

18

circumstance was expanded by eliminating the requirement of “proof of the infliction of

19

extreme physical pain no matter how long its duration” previously required by that special

20

circumstance.68 The drafters of Proposition 115 apparently attempted to revive the “heinous,

21

atrocious, or cruel” special circumstance (former Penal Code section 190.2(a)(14)) held to be

22
23
24
25
26
27
28

61

Exh. 139 at 650 (California Ballot Pamphlet, Primary Election (June 5, 1990), Full Text of
Proposition 115).
62
Exh. 139 at 648.
63
Exh. 139 at 658.
64
Exh. 139 at 660.
65
Exh. 139 at 285.
66
Exh. 139 at 616, 630-31.
67
Exh. 139 at 275; Exh. 139 at 659.
68
Exh. 139 at 660.
13

Exhibit I
Page 231

1

unconstitutional in People v. Engert, by including it in the proposed new law and affirmatively

2

making non-substantive amendments to the provision.69

3

California Supreme Court’s holding in People v. Anderson, that as to actual killers, intent to kill

4

is not a required element for any of the special circumstances unless explicitly made so by the

5

statute.70

6

Committee analysis of Proposition 115, the proponents of the Proposition desired this

7

amendment to preclude any future judicial re-imposition of intent to kill beyond the holdings of

8

Anderson.71

9

eliminating the intent to kill element and requiring only that the accomplice act with “reckless

10

indifference to human life and as a major participant” for the felony murder special

11

circumstances to apply.72 Proposition 115 also corrected drafting errors included in the Briggs

12

Initiative, including to the kidnapping and arson felony murder special circumstances.73
27.

13

Proposition 115 codified the

According to the Senate Committee on Judiciary and Assembly Public Safety

The Proposition also expanded the liability of felony murder accomplices,

Along with Proposition 115, Proposition 114 was also approved by California

14

voters on June 5, 1990, effective June 6, 1990, and served to expand the definition of “peace

15

officer” for purposes of the peace officer special circumstance in Penal Code section

16

190.2(a)(7), and other areas of the Penal Code.74
28.

17

The definition of first-degree murder was again expanded in 1993 with the

18

addition of felony murder carjacking and murder perpetrated by means discharging a firearm

19

from a motor vehicle to the list of statutory first-degree murders in Penal Code section 189.

20

1993 Cal. Stat. c. 611 (S.B.60), § 4, eff. Oct. 1, 1993; 1993 Cal. Stat. c. 611 (S.B.60), § 4.5, eff.

21

Oct. 1, 1993; 1993 Cal. Stat. chap. 611, § 4.5, effective October 1, 1993. According to the

22

Assembly Committee on Public Safety’s analysis of Senate Bill 60, which enacted the

23

carjacking felony murder theory of first-degree murder, this additional type of first-degree

24
25
26
27
28

69

Exh. 139 at 660.
Exh. 139 at 661.
71
Exh. 139 at 279.
72
Exh. 139 at 661.
73
Exh. 139 at 660.
74
Exh. 139 at 671-74 (California Ballot Pamphlet, Primary Election (June 5, 1990), Full Text of
Proposition 114).
70

14

Exhibit I
Page 232

1

murder was necessary because it was “difficult to prove” this crime under the robbery felony

2

murder theory.75 According to a Senate Committee analysis of Senate Bill 310, which enacted

3

the drive-by murder theory first-degree murder, this amendment to Penal Code section 189 was

4

designed to “change the elements of first degree murder to make it easier to obtain a first-

5

degree murder conviction for a drive-by shooting murder.”76 According to the author and

6

sponsor of Senate Bill 310, those convicted of drive-by killings should be subject to the death

7

penalty, and then-current law did not “adequately punish” this type of murder.77
29.

8

Despite that the special circumstances are supposed to narrow death-eligibility

9

from first-degree murder, the Legislature and electorate continued to remove differences

10

between first-degree murder and the special circumstances by enacting subsequent amendments

11

to the list of special circumstances deemed necessary when it was discovered that a type of

12

first-degree murder was not punishable by death. Soon after felony murder carjacking and

13

drive-by killings were added to the list of statutory first-degree murders in Penal Code section

14

189, the Legislature acted to ensure that this same criminal conduct also constituted special

15

circumstance liability, thus, was punishable by death. 1995 Cal. Stat. c. 477 § 1 (S.B. 32);

16

1995 Cal. Stat. c. 478 (S.B. 9).
30.

17

With the passage of Senate Bill 32, which was approved by California voters on

18

March 26, 1996 by Proposition 195, the felony murder carjacking special circumstance and the

19

juror killing special circumstance were added to the Penal Code as sections 190.2(a)(17)(L) and

20

190.2(a)(20), and the felony murder kidnapping special circumstance was expanded to include

21

murders resulting from carjacking kidnap (Penal Code section 190.2(a)(17)(B)). 1995 Cal.

22

Stat. c. 477 § 1 (S.B. 32) and Proposition 195, approved March 26, 1996, effective March 27,

23

1996.78 Urging passage of Senate Bill 32, the author, then-Senator Steve Peace, asserted that

24
75

25
26
27
28

Exh. 139 at 679-80 (California Assembly Committee on Public Safety, Bill Analysis, July 13,
1993 Hearing, Senate Bill No. 60 (1993-94 Reg. Sess.), as proposed to be amended).
76
Exh. 139 at 677 (California Senate Committee, Bill Analysis, March 30, 1993 Hearing, Senate
Bill No. 310 (1993-94 Reg. Sess.), as amended March 29, 1993).
77
Exh. 139 at 676.
78
See Exh. 139 at 712-24 (California Ballot Pamphlet, Primary Election (March 26, 1996), Full
Text of Proposition 195).
15

Exhibit I
Page 233

1

felony murder carjacking and felony murder kidnap carjacking were “the only crimes that are

2

subject to the first degree felony murder rule that are not special circumstances under law”79

3

and thus, according to the argument in favor of Proposition 195 in the voter pamphlet, the

4

addition of these two new special circumstances would “conform” the list of special

5

circumstances to the list of first-degree felony murders.80 In urging passage of his bill, Senator

6

Peace on the one hand took the position that the carjacking felony murder and the kidnap-

7

carjacking felony murder special circumstances were “merely ‘clean-up’ provisions since a

8

carjacking is essentially a robbery and robbery is already a special circumstance and

9

kidnapping is also a special circumstance.”81 He also acknowledged, however, that carjacking

10

first-degree murders “cannot easily be prosecuted” under the robbery felony murder special

11

circumstance, rather, securing such a conviction required “a series of procedural hoops,” but

12

that the proposed legislation “solves the problem by directly making carjacking related first

13

degree murders a special circumstance.”82
31.

14

The juror killing special circumstance was added to the Penal Code as section

15

190.2(a)(20) by this same legislation, despite law enforcement officials’ apparent inability to

16

identify any case in California involving the murder of a juror.83 The bill’s author argued that

17

this additional special circumstance was necessary since “It is obvious given the central role

18

that jurors play in the administration of justice, killing a juror because of his or her official

19

actions is just as much an outrage as killing a judge or a witness.”84 The bill’s author also

20

referenced the need to “legislatively rectify drafting errors and other problems with the [ ] 1978

21
22
23
24
25
26
27
28

79

Exh. 139 at 706 (Letter to Governor Pete Wilson, from Senator Steve Peace, California State
Senate (Sept. 15, 1995) (emphasis in original).
80
Exh. 139 at 714.
81
Exh. 139 at 706.
82
Exh. 140 at 69-70 (Letter to the Editor, Sacramento Bee, from Senator Steve Peace, California
State Senate (March 4, 1996) (emphasis in original); Exh. 140 at 156-57 (Editorial, Letters, Sacramento
Bee, March 19, 1996, at B7).
83
See Exh. 140 at 75 (State Propositions at a Glance, S.F. Chronicle, March 24, 1996, at 6/Z1).
84
Exh. 139 at 690 (California Senate Committee on Criminal Procedure, Analysis, March 7, 1995
Hearing, Senate Bill No. 32 (1995-96 Reg. Sess.), as proposed to be amended); Exh. 139 at 157; Exh.
139 at 714.
16

Exhibit I
Page 234

1

death penalty law” as being behind the need to add the juror killing special circumstance to

2

Penal Code section 190.2.85
32.

3

At the same time Senate Bill 32 and corresponding Proposition 195 went into

4

effect, Senate Bill 9 was passed and approved by California voters by Proposition 196, which

5

added the drive-by murder special circumstance to Penal Code section 190.2 (§ 190.2(a)(21)).

6

1995 Cal. Stat. c. 478 (S.B. 9), § 2 (Prop. 196, approved March 26, 1996) effective March 27,

7

1996.86 The legislation was enacted in recognition that drive-by shooting murder “is first

8

degree murder, but is not one of the enumerated special circumstances” 87 and thus the voter

9

ballot for Proposition 196 informed voters that the measure simply “adds first-degree murder

10

resulting from a drive-by shooting to the list of special circumstances . . .”88 According to

11

proponents of this expansion of the death penalty, drive-by shootings were “no longer confined

12

to the inner city,”89 rather, drive-by shootings, thought largely to be gang-related, were

13

“spreading like wildfire to the suburbs and even rural California,”90 thus, the sentence for first-

14

degree murder without special circumstances was thought to be “too lenient.”91
33.

15

The drafters of Senate Bills 32 and 9 and the corresponding propositions again

16

included the “heinous, atrocious, cruel” special circumstance (§ 190.2(a)(14)) in the proposed

17

amended law, again making non-substantive amendments to this unconstitutional special

18

circumstance.92
34.

19

Concerns have been raised that political considerations played a significant role

20

in these more recent expansions of the California death penalty. Because first-degree felony

21

murder carjacking and kidnap-carjacking, as well as drive-by first-degree murder were

22
85

23
24
25
26
27
28

Exh. 140 at 69-70.
See Exh. 139 at 725-37 (California Ballot Pamphlet, Primary Election (March 26, 1996), Full
Text of Proposition 196).
87
Exh. 139 at 703 (California Senate Committee on Criminal Procedure, Analysis, March 7, 1995
Hearing, Senate Bill No. 9 (1995-96 Reg. Sess.), as introduced).
88
Exh. 139 at 726.
89
Exh. 139 at 726.
90
Exh. 139 at 728.
91
Exh. 139 at 702.
92
Exh. 139 at 718; Exh. 139 at 731.
86

17

Exhibit I
Page 235

1

potentially already covered by existing special circumstances, these death penalty bills were

2

criticized as being “grandstanding” political bills93 and a waste of time utilized to gain political

3

mileage out of high profile types of crime.94
35.

4

In 2000, both the definition of first-degree murder and the special circumstances

5

were once again expanded. The first-degree murder statute was expanded by the addition of

6

torture felony murder to the list of first-degree felony murders in Penal Code section 189. 1999

7

Cal. Stat. 1c. 694, §1, (AB 1574) effective January 1, 2000. The purpose of adding torture

8

felony murder to section 189 was to ease the prosecution’s burden in securing a first-degree

9

murder conviction when the crime of torture is involved.95 Specifically, the purpose of the bill

10

was to “eliminate” the prosecution’s burden of proving that the torture of the victim was

11

willful, deliberate and premeditated, as is required by the murder by means of torture theory of

12

first-degree, and require only proof that the defendant intended to torture.96 According to the

13

Assembly Committee of Public Safety’s analysis of Assembly Bill 1574, which enacted this

14

amendment, this addition to section 189 would “significantly affect the way a prosecutor would

15

go about charging” torture-related killings.97 The inability of the Los Angeles County District

16

Attorney’s Office to obtain a first-degree murder conviction in a specific case apparently gave

17

rise to the need for this expansion of the first-degree murder statute. According to the Los

18

Angeles District Attorney’s Office, the “source” of Assembly Bill 1574, a “miscarriage of

19

justice” had occurred in a then-recent case, when the jury convicted the defendant of torturing a

20

child to death, “but nevertheless found that there was no ‘premeditation or deliberation’ and

21
22
23
24
25
26
27
28

93

Exh. 140 at 62 (Mike Lewis, Expansion of Capital Crimes Nears Passage, Sonoma County
Herald-Recorder, Sept. 19, 1995, at 8, 15).
94
See Exh. 140 at 64 (Pamela Martineau, Wilson Signs Bill Allowing Death Penalty for
Murdering Carjackers, Metropolitan News Enterprise, Los Angeles, California, Sept. 27, 1995, at 9).
95
Exh. 139 at 783-84 (California Assembly, Third Reading, Assembly Bill No. 1574 (1999-2000
Reg. Sess.), as introduced Feb. 26, 1999); Exh. 139 at 785-89 (California Assembly Committee on
Public Safety, Analysis, April 13, 1999 Hearing, Assembly Bill No. 1574 (1999-2000 Reg. Sess.), as
introduced Feb. 26, 1999).
96
Exh. 139 at 786-87.
97
Exh. 139 at 786.
18

Exhibit I
Page 236

1

returned a verdict of second not first degree murder.”98

2

Assembly Bill 1574 “corrects this anomaly” and “ensures” that when a murder occurs during

3

the crime of torture, the crime is treated as first-degree felony murder.99
36.

4

According to the bill sponsor,

The death penalty was also expanded in several respects in 2000. Senate Bill

5

1878 and corresponding Proposition 18, which became effective March 8, 2000, expanded the

6

kidnap and arson felony murder special circumstances (Penal Code §§ 190.2(a)(17)(B), (H),

7

(M)) as well as the lying in wait special circumstance (Penal Code § 190.2(a)(15)). 1998 Cal.

8

Stat. c. 629, § 2 (S.B. 1878), Proposition 18, approved by California voters on March 7,

9

effective March 8, 2000.100 The purpose of this bill was to “overturn specific court cases

10

regarding the death penalty by changing the language regarding lying in wait, and to eliminate

11

the distinction between committing a murder during the commission of an arson or kidnapping

12

and committing an arson or kidnapping to facilitate a murder”101 “for purposes of expanding

13

the death penalty.”102 Specifically, according to the bill sponsor, Senate Bill 1878 was “clearly

14

designed to abrogate” California Supreme Court precedent set forth in People v. Green, 27 Cal.

15

3d 1 (1980), People v. Weidert, 39 Cal. 3d 836 (1985) and Domino v. Superior Court, 129 Cal.

16

App. 3d 1000 (1982).103
37.

17

Senate Bill 1878 and corresponding Proposition 18 amended the lying in wait

18

special circumstance by expanding the former statutory language requiring that the defendant

19

intentionally killed the victim “while lying in wait,” which had been interpreted in Domino to

20

require proof that no cognizable interruption separate the period of lying in wait from the

21
22
23
24
25
26
27
28

98

Exh. 139 at 807 (California Senate Rules Committee, Third Reading, Analysis, Assembly Bill
No. 1574 (1999-2000 Reg. Sess.), as introduced (Sept. 2, 1999)).
99
Exh. 139 at 807.
100
See Exh. 139 at 809-17 (California Ballot Pamphlet, General Election (March 7, 2000), Full
Text of Proposition 18).
101
Exh. 139 at 742 (California Senate Committee on Public Safety, Analysis, April 21, 1998
Hearing, Senate Bill No. 1878 (1997-98 Reg. Sess.), as introduced as reflected by proposed
amendments).
102
Exh. 139 at 780 (California Assembly Committee on Appropriations, Analysis, July 29, 1998
Hearing, Senate Bill No. 1878 (1997-98 Reg. Sess.), as amended July 16, 1998).
103
Exh. 139 at 755 (Letter to The Honorable Quentin L. Kopp, California State Senate, from
Gregory D. Totten, Chief Deputy District Attorney and Peter D. Kossoris, Senior Deputy District
Attorney, Office of the District Attorney, Ventura County, California (April 23, 1998)).
19

Exhibit I
Page 237

1

period during which the killing takes place, to “by means of lying in wait,” language identical

2

to the first-degree murder theory of lying in wait, which does not include this additional

3

temporal requirement.104 As explained by the bill sponsor, the statutory language of the lying

4

in wait special circumstance prior to this amendment required “more rigorous proof” than the

5

first-degree murder theory of lying in wait, a distinction the sponsor felt was “not a fair or just

6

one” and in need of elimination.105 This distinction was apparently perceived as problematic

7

because it “allows some persons to satisfy the requirements for first degree murder without

8

satisfying the requirements to limit their sentence options to death or [life without the

9

possibility of parole].”106 In other words, the “more rigorous proof” required by the special

10

circumstance that provided some statutory narrowing from first-degree murder by means of

11

lying in wait was eliminated because of the narrowing function it provided. In order to

12

eliminate this narrowing distinction, the purpose of this amendment was “to conform” the

13

narrower definition of lying in wait as used in the special circumstance to the broader first-

14

degree murder definition.107
38.

15

Also as a result of Senate Bill 1878 and Proposition 18, the kidnap and arson

16

felony murder special circumstances were expanded to apply to cases in which the felony of

17

kidnapping or arson was committed primarily or solely for the purpose of facilitating murder

18

when intent to kill is present, thereby expressly exempting these two special circumstance from

19

the “independent felonious purpose” doctrine, as set forth in the longstanding California

20

Supreme Court decisions of People v. Green, 27 Cal. 3d 1 (1980), and People v. Weidert, 39

21

Cal. 3d 836 (1985), which was the Legislature’s stated intent in amending these two special

22
23
24
25
26
27
28

104

Exh. 139 at 744-45, 752; Exh. 139 at 809-10.
Exh. 139 at 739-40 (Letter to Mr. Charles Fennessey, Deputy Legislative Secretary, Governor’s
Office, from Gregory D. Totten, Chief Deputy District Attorney, Office of the District Attorney,
Ventura County, California (Dec. 4, 1997)).
106
Exh. 139 at 757 (California Department of Finance, Bill Analysis, Senate Bill No. 1878 (199798 Reg. Sess.), as amended April 28, 1998 (May 13, 1998)).
107
Exh. 139 at 752-73; Exh. 139 at 759-60 (California Assembly Republican Bill Analysis, Senate
Bill No. 1878 (1997-98 Reg. Sess.), as amended July 16, 1998); Exh. 138 at 769 (California Assembly
Committee on Public Safety, Analysis, June 23, 1998 Hearing, Senate Bill No. 1878 (1997-98 Reg.
Sess.), as proposed to be amended).
105

20

Exhibit I
Page 238

1

circumstances.108

2

Court applied to the felony murder special circumstances were judicially enacted out of

3

constitutional necessity; according to the California Supreme Court, without this narrowing

4

construction, the special circumstance would run afoul of the narrowing requirements of

5

Furman v. Georgia, 408 U.S. 238 (1972), and Gregg v. Georgia, 428 U.S. 153 (1976). People

6

v. Green, 27 Cal. 3d 1, 59-63 (1980). In urging passage of Proposition 18, however, these

7

judicial decisions were described to voters in the ballot pamphlet arguments as “unjust, illogical

8

remnants of the Rose Bird court” in need of abrogation in order to “restore logic, fairness and

9

justice to our death penalty laws.”109
39.

10

The “independent purpose” doctrine limitations the California Supreme

The expansions of the California death penalty enacted by Senate Bill 1878 and

11

Proposition 18 were enacted “as a result of”110 a single 1997 trial in Ventura County,

12

California, in which the jury rejected the lying in wait special circumstance as to one of two

13

defendants, and the facts of which “unfortunately” did not support charging the kidnap felony

14

murder special circumstance (as it then existed) against either defendant.111 Although the jury

15

found the financial gain special circumstance (Penal Code § 190.2(a)(1)) to be true as to both

16

defendants in that case,112 the prosecution of these defendants apparently was not sufficiently

17

extensive for the Ventura County Deputy District Attorney’s Office, who sponsored Senate Bill

18

1878 and corresponding Proposition 18 following this trial in order to “correct two separate

19

problems with the law of special circumstances” which limited the applicability of the lying in

20

wait special circumstance and prevented application of the kidnap felony murder special

21

circumstance in their case.113 The bill’s sponsor explained that it was “Because of some bizarre

22

Rose Bird court decisions from the 1980s,” that the two defendants could not be charged with a

23
24
25
26
27
28

108

Exh. 139 at 818 (1998 Cal. Stat. c. 629, § 2 (S.B. 1878) as chaptered Sept. 21 1998, approved
by Proposition 18 on March 7, 2000, effective March 8, 2000).
109
Exh. 139 at 811.
110
Exh. 140 at 144 (Editorial, Letters: Help Our Children, Vote for Prop. 18 . . ., Ventura County
Star, Feb. 29, 2000, at B09).
111
Exh. 139 at 767-68.
112
Exh. 139 at 767-68.
113
Exh. 139 at 744, 767-68.
21

Exhibit I
Page 239

1

kidnap special circumstance and one could not be found guilty of the lying in wait special

2

circumstance, but that “Proposition 18 will correct the tortured interpretations of the law these

3

1980s decisions represent, as well as a similar misinterpretation regarding the arson special

4

circumstances.”114

5

40.

The most recent expansion to the California death penalty statute came as a

6

result of the passage of Proposition 21, which added the criminal street gang killing special

7

circumstance to Penal Code section 190.2 (§190.2(a) (22)), effective March 8, 2000. The

8

argument in favor of Proposition 21 in the ballot pamphlet informed voters that “Prop 21 ends

9

the ‘slap on the wrist’ of current law by imposing real consequences for GANG MEMBERS,

10

RAPISTS AND MURDERES who cannot be reached through prevention or education.”115

11

The roots of Proposition 21 can be traced to former Governor Pete Wilson. In 1998, then-

12

Governor Wilson, along with several law enforcement organizations, attempted to pass a

13

legislative crime package designed to overhaul the juvenile justice system and increase

14

punishments for juvenile offenders. When the legislation was defeated, Wilson and the bill’s

15

sponsors put their plan, referred to as “The Gang Violence and Juvenile Crime Prevention Act,”

16

on the ballot as Proposition 21.116 Reportedly, then-Governor Wilson put this issue on the

17

ballot at a time when he planned to run for President of the United States in order to advance

18

his standing in the March 2000 primary election.117
41.

19

The drafters of Senate Bill 1878 and corresponding Proposition 18, and of

20

Proposition 21 again included the unconstitutional “heinous, atrocious, cruel” special

21

circumstance (§ 190.2(a)(14)) in the proposed amended laws.118

22
23
24

114

Exh. 140 at 144-45.
Exh. 139 at 829 (California Ballot Pamphlet, General Election (March 7, 2000), Full Text of
Proposition 21).
116
Exh. 139 at 831; Exh. 140 at 96-97 (Propositions, California Journal, Feb. 1, 2000); and see
Robert L. v. Superior Court, 109 Cal. Rptr. 2d 716, 721 (2001) superseded by Robert L. v. Superior
Court, 30 Cal. 4th 894 (2003).
117
Exh. 140 at 135 (Endorsements, L.A. Weekly, Feb. 25, 2000, at 24).
118
Exh. 139 at 815; Exh. 139 at 842.
115

25
26
27
28

22

Exhibit I
Page 240

42.

1

In 2002, the definition of first-degree murder was once again expanded by the

2

addition of murder by means of a weapon of mass destruction to the list of first-degree murders

3

in Penal Code section 189. 2002 Cal. Stat. c. 606 (A.B.1838), § 1, eff. Sept. 17, 2002.

4

According to the Senate Committee on Public Safety’s analysis of Assembly Bill 1838, which

5

enacted this amendment, the rationale for the amendment was that destructive devices, already

6

a type of first-degree murder listed in Penal Code section 189, and weapons of mass destruction

7

(“WMD”) are “very similar” and that “the most important consequence of designating a murder

8

as murder in the first-degree is that such crimes may be punished by the death penalty if the

9

prosecutor proves specified special circumstances.”119 The Legislature acknowledged that

10

“The list of special circumstances is long. It is very likely that defendants convicted of murders

11

by means of a WMD would be eligible for the death penalty in many, if not most, cases.”120
43.

12

As the categories of death-eligible offenses have been increasingly broadened,

13

growing concerns have been raised about whether California is “pushing the envelope” with

14

respect to the continued expansion of the special circumstances.121 Around the time the death

15

penalty statute was expanded to include the felony murder carjacking, felony murder kidnap

16

carjacking, drive-by killing, and the juror killing special circumstances, representatives of the

17

California Attorney General’s Office acknowledged that those who seek to further expand the

18

California death penalty “could run out of legal territory to carve out”122 and that “[i]n the

19

abstract, you could toss a bunch more crap in there, but you have to know your constitutional

20

limits . . . [y]ou have to be very careful.”123 At the time Senate Bill 1878 was making its way

21

through the legislative process in the late 1990s, Dane R. Gillette, then a Senior Assistant

22

Attorney General and currently the Chief Assistant Attorney General, noted that a

23

constitutional challenge for failing to adequately narrow the death penalty in California is not

24
119

25
26
27
28

Exh. 139 at 890 (California Senate Committee on Public Safety, Analysis, June 18, 2002
Hearing, Assembly Bill No. 1838 (2001-2002 Reg. Sess.), as amended March 7, 2002).
120
Exh. 139 at 890.
121
See e.g. Exh. 139 at 763.
122
Exh. 140 at 72-73 (Mike Lewis, Death Penalty Quietly Moves Into Broader Territory, S.F.
Daily Journal, March 20, 1996, at 1, 7).
123
Exh. 140 at 62.
23

Exhibit I
Page 241

1

an argument he felt would be successful, but is one his office would “want to avoid if at all

2

possible,” acknowledging that it is “a concern.”124 In connection with its analysis of Senate

3

Bill 1878 in 1998, the Assembly Committee on Public Safety noted that United States Supreme

4

Court justices had warned the California Attorney General’s Office against expanding

5

California’s death penalty.125
44.

6

In 1999, the California Legislature acknowledged that “Adding More Special

7

Circumstances Raises Constitutional Concerns,” and that “At some point, the courts will likely

8

announce that the ‘special circumstances’ list contains too many crimes and sweeps too

9

broadly, striking it down on constitutional grounds and the Legislature will be required to

10

rewrite the special circumstances law to return it to a judicially acceptable dimension.”126 The

11

Legislature has also acknowledged that “California’s statute is so broad that a high percentage

12

of all first-degree murders are death eligible, thereby eliminating the narrowing function that its

13

special circumstances are supposed to provide.”127
45.

14

The California Commission on the Fair Administration of Justice was created by

15

Senate Resolution No. 44 of the 2003-04 Session of the California State Senate, adopted on

16

August 27, 2004. The Commission examined many facets of California’s criminal justice

17

system, including California Death Penalty procedures. Two of the Commission’s findings,

18

agreed to by all or a majority of the Commissioners, are relevant here.
46.

19

The Commission unanimously recommended that “all District Attorney Offices

20

in California formulate and disseminate a written Office Policy describing how decisions to

21

seek the death penalty are made, who participates in the decisions, and what criteria are

22

applied.” California Commission on the Fair Administration of Justice, Final Report 155

23
24
25
26
27
28

124

Exh. 140 at 86 (Peter Blumberg, Expanding Capital Punishment: Making More Crimes DeathEligible Has Public Appeal but Major Constitutional Problems, S.F. Daily Journal, May 26, 1998, at 1,
9).
125
Exh. 139 at 763.
126
Exh. 139 at 794-95 (California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 3 (1999-2000 Reg. Sess.), as introduced Dec. 7, 1999).
127
Exh. 139 at 801 (California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 625 (1999-2000 Reg. Sess.), as amended April 7, 1999).
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Exhibit I
Page 242

1

(2008). The impetus for this recommendation was “the great variation in the practices for

2

charging specials circumstances.” Id. Indeed, not only are there not any statewide, uniform

3

capital charging policies, most county district attorney offices lack coherent policies for making

4

such decisions. Because the vast majority of first-degree murders are death-eligible under

5

California’s death penalty statute, county District Attorney’s offices and individual prosecutors

6

have been forced to develop their own policies or practices, formal and informal, for

7

determining which, of all death-eligible murders, actually deserve to be and are charged as

8

death penalty cases.
47.

9

For example, in 2003, the Alameda County District Attorney described how his

10

office decided who, among those who were death eligible under the statute, would ultimately

11

be charged with death in Alameda County: “I plug everything in, and I make an evaluation of

12

whether a jury may reasonably come back with death . . . [t]hat's kind of the bottom-line test.

13

All murders are bad. How bad is this one?” This District Attorney reportedly estimated that

14

his office sought capital punishment in about a quarter of eligible cases.128 Concerning the

15

reason behind the ultimate decision to seek the death penalty in eligible cases, the then-

16

Alameda County District Attorney said, “Basically, it can be anything.”129
48.

17

The Los Angeles County Assistant District Attorney who in 1994 made the final

18

decision on whether to seek the death penalty in cases that were death-eligible after an eight-

19

member committee considered penalty options, reported that the defendant’s criminal history

20

was “major, major factor” in deciding whether to seek death by that office at that time.130
49.

21

Concerning whether to seek the death penalty in a highly publicized case

22

involving multiple murder, the presiding District Attorney of Stanislaus County stated in 2003

23

that he “intend[ed] to give the [victim’s] family’s opinions a lot of weight.”131

Local

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25
26
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28

128

Exh. 140 at 152 (Harriet Chiang, How Prosecutors Choose Death Penalty; Stanislaus D.A. Says
Laci Case Meets Most of His Criteria, S.F. Chronicle, April 24, 2003, at A1).
129
Exh. 140 at 152.
130
Exh. 140 at 58 (Beth Barrett, Simpson Isn’t Seen as Likely Candidate for Death Sentence, Daily
News of Los Angeles, July 24, 1994, at N1).
131
Exh. 140 at 151.
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Exhibit I
Page 243

1

prosecutors interviewed at this time reportedly stated that they pursue capital punishment only

2

in a fraction of the eligible cases.132
50.

3

In 2002, the Riverside County District Attorney reportedly stated that his test for

4

what makes a death penalty case is to ask “Is the death penalty appropriate, given all the

5

circumstances, and would a jury be likely to return a death verdict?”133 This District Attorney

6

reportedly stated that his approach in determining when to charge death in death-eligible crimes

7

had changed through the years; for example, he has learned that juries in his county are less

8

likely to return death verdicts when the defendant is young or the crime is committed among

9

family members and thus, explained that “We understand the costs and other issues. We

10

obviously do not want to go forward on cases where there's no reasonable likelihood a jury will

11

return a verdict of death.”134 In 2008, the Riverside County District Attorney stated that he

12

recently “changed the approach” from that of his predecessor in determining whether to seek

13

the death penalty, including by “open[ing] up the process . . . to law enforcement and to the

14

victim's family,” to ask whether they have a recommendation.135
51.

15

In 2003, a Santa Clara County Assistant District Attorney who oversaw

16

homicide cases reportedly stated that prosecutors in her county do not seek the death penalty in

17

the majority of eligible cases and that it is a “very fact-specific decision.”136 In 2003, a Chief

18

Deputy District Attorney in San Mateo County stated that, “The manner in which the murder is

19

carried out is probably one of the most -- if not the most -- important factor for the prosecution

20

in assessing whether to seek the death penalty.”137
52.

21
22
23
24
25
26
27
28

The second finding made by a majority of the Commissioners was the

recommendation to either correct the numerous deficiencies in California “dysfunctional” death
132

Exh. 140 at 151-52.
Exh. 140 at 149 (Stuart Pfeifer, California Courts Sentencing Fewer Killers to Death Row;
Justice: The Decline Comes as Violent Crime Falls, D.A.s are More Selective in Capital Cases, L.A.
Times, June 10, 2002, at Part 1, Metro Desk, p.1).
134
Exh 140 at 149.
135
Exh. 140 at 155 (Interactive Map: See Where Murderers Most Often get the Death Penalty,
Sacramento Bee, July 1, 2009).
136
Exh. 140 at 152.
137
Exh. 140 at 153.
133

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Exhibit I
Page 244

1

penalty scheme or adopt either a much narrower death penalty statute or replace the death

2

penalty with the maximum penalty at lifetime incarceration.

3

Commission for the first alternative came from several witnesses who testified that “the

4

primary reason that the California Death Penalty Law is dysfunctional is because it is too

5

broad, and simply permits too many murder cases to be prosecuted as death penalty cases. The

6

expansion of the list of special circumstances in the Briggs Initiative and in subsequent

7

legislation, they suggest, has opened the floodgates beyond the capacity of our judicial system

8

to absorb.” (Final Report at 138.) As former Florida Supreme Court Chief Justice Gerald

9

Kogan told the Commission having 21 special circumstances is “unfathomable.’” Id.

10

53.

The evidence before the

After following and studying the enactment, amendment, litigation and

11

interpretation of the California death penalty law for the past 39 years, I have concluded that

12

the California death penalty law imposes no meaningful limitations on the broad discretion of

13

prosecutors and juries to seek and impose the death penalty for first degree murders in

14

California. There is nothing “special” about the special circumstances in California’s death

15

penalty law; they have been deliberately designed to encompass nearly all first degree murders.

16

This has resulted in widespread geographic and racial disparity in the administration of

17

California’s death penalty law.

18
19

The foregoing is true and correct and executed under penalty of perjury under the laws
of the United States and the State of California on October 30, 2009.

20
21
22

______________________________
GERALD F. UELMEN

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27

Exhibit I
Page 245

APPENDIX A

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2
3

Curriculum Vitae

4

GERALD F. UELMEN

7

Business Address: School of Law
Santa Clara University
500 El Camino Real
Santa Clara, California 95053
Tel. [phone]
E-Mail: [e-mail]

8

Born: October 8, 1940; Greendale, Wisconsin

9

Marital Status: Married to Martha Uelmen, Family Law Attorney/Mediator, Sunnyvale, California
Three children: Nancy, Amy, Matthew

5
6

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I. Educational Background
1965-66 Georgetown University School of Law,
LL.M. Degree; E. Barrett Prettyman Fellow in
Criminal Trial Advocacy.
1962-65 Georgetown University School of Law,
J.D. Degree.
Awards and Activities:
Board of Editors, Georgetown Law Journal, Vol.53;
Winner, Edward Douglas White Public Law Argument, (Law School Competition), 1965;
Winner, Beaudry Cup Legal Argument Competition, (1st Year Competition) 1963.
1958-62 Loyola University of Los Angeles,
B.A. in Political Science.
Awards and Activities:
Outstanding Debater, Southern California,1962;
Class President.
1954-58 Mt. Carmel High School, Los Angeles

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21

II. Academic Experience

22

1986- Present: Professor of Law,
Santa Clara University School of Law

23

1997: Director, Santa Clara Law School Summer Study Program, Budapest, Hungary.

24

1995,2000: Visiting Professor of Law, Stanford Law School.

25

1986-94: Dean and Professor,
Santa Clara University School of Law.

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27

1970-86: Professor of Law, Loyola Law School
Los Angeles, California
(Associate Dean, 1973-75)

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Exhibit I
Page 246

1

Law School Courses Taught: Evidence, Trial Advocacy, Advanced Trial
Advocacy, Criminal Law, Criminal Procedure, Advanced Criminal Procedure,
Drug Abuse Law, Lawyering Skills, Legal Ethics, Civil Procedure.

2
3

III. Legal Experience

4

1965-66: Representation of indigent defendants in
criminal cases in District of Columbia.

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6
7
8
9
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11
12

1966-70: Assistant U. S. Attorney,
Central District of California, Los Angeles, California.
Prosecution of organized crime cases from
grand jury stage through trial and appeal.
Chief, Special Prosecutions Division, 1970;
Sustained Superior Performance Award, 1968.
1971-Present: Occasional representation of defendants in
criminal cases in federal and state courts,principally on appeals.
Of Counsel to Law Offices of Douglas Dalton, Los Angeles (1983-1986).
Of Counsel to Law Offices of Ephraim Margolin, San Francisco (1993-present).
Admitted to Practice: District of Columbia (1966);
California (1967); U.S. Supreme Court (1974);
Certified Specialist, Criminal Law, California Board of Legal Specialization (1973-1983).

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Significant Cases:
United States v. Friedman, 432 F.2d 879 (1970).
Prosecution and appeal of organized crime conspiracy to cheat in high-stakes gin rummy games at
Friars Club.
United States v. Daniel Ellsberg, U.S.D.C., C.D.Cal. (1972).
Preparation and argument of motions and jury instructions in defense of Ellsberg's release of
"Pentagon Papers."
United States v. Drebin, 557 F.2d 1316, 572 F.2d 215 (9th Cir. 1978).
Defense and appeal of first criminal copyright charges for "film piracy."
In Re Gordon Castillo Hall, 30 Cal.3d 408 (1981).
Successful habeas corpus challenge to first degree murder conviction based on new evidence of
innocence.
Yarbrough v. Superior Court, 39 Cal.3d 197 (1985).
Amicus brief challenging power of courts to appoint attorneys to represent civil defendants without
compensation or reimbursement of expenses.
People v. Christian Brando, L.A.Sup.Ct., 2nd D.C.A. (1991-92).
Pretrial Motions, Preliminary Hearing, sentencing hearing and appeal in manslaughter conviction of
Marlon Brando's son.
People v. O.J. Simpson, L.A. Sup.Ct.
(1994-95)
Preparation and presentation of Suppression
and Evidentiary Motions and Jury Instructions in televised murder trial.
Eslaminia v. White, 136 F.3d 1234 (9th Cir. 1997).
Appeal of Habeas Corpus Petition Challenging Murder conviction arising from "Billionaire Boys Club"
case.

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Exhibit I
Page 247

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2
3
4
5
6
7
8
9

People v. Peter Baez, 78 Cal.App.4th 403 (2000); 79 Cal.App.4th 1177 (2000).
Defense of Founder of Santa Clara Medical Cannabis Center.
United States v. Oakland Cannabis Buyers' Cooperative, 190 F.3d 1109 (9th Cir. 1999);
--- U.S. ---(2001).
Defense against effort to close down medical
marijuana facility by federal injunction.
Wo/Mens Alliance for Medical Marijuana v. United States, Pending appeal to 9th Circuit;
Motion for return of medical marijuana seized in D.E.A. raid.
County of Santa Cruz v. John Ashcroft, Pending in U.S. District Court for Northern District of California.
Suit for injunctive and declaratory relief on behalf of terminally ill patients
who are members of Wo/Mens Alliance for Medical Marijuana.
IV. Professional Activity
Judicial Council of California, Task Force on the Quality Of Justice,
Committee on Alternative Dispute Resolution and the Judicial System, 1998-99.

10

California Attorneys for Criminal Justice: Board of Governors, 1976-Present; President, 1982-1983.

11

California Academy of Appellate Lawyers: 1981-Present; President, 1990-91.

12

State Bar of California: Special Investigator in disciplinary investigation, 1975-1976; Ad Hoc
Committee to Consider an Appellate Justices Evaluation Commission, 1983-1984; Ad Hoc Committee
to Study the Crisis in the Representation of Indigents in Criminal Appeals, 1983- 1984; Executive
Committee, Criminal Law Section, 1987-92, Chair, 1991-92; Editorial Board, California Litigation
(journal of Litigation Section), 1990-99.

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14
15
16
17
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20
21
22
23
24
25

Sixth District Appellate Project: Board of Directors, 1988-Present; Treasurer, 1988-Present.
U.S. Court of Appeals, Ninth Circuit: Co-Chair, Rules Advisory Committee, 1984-1992; Delegate,
Circuit Conference, 1983-84.
Los Angeles County Bar Association: Vice Chair, Law Schools Committee, 1981-1983; Executive
Committee, Criminal Justice Section, 1981-1986; Vice Chair, Federal Courts Committee, 1974-1977;
Chair, Special Committee on Defense of the Courts, 1982; Trustee, 1983-1985.
Markkula Center for Applied Ethics, Santa Clara University: Steering Committee, 1992-1999; Scholar.
National Association of Criminal Defense Lawyers:
Editorial Advisory Board, Champion Magazine.
California Habeas Resource Center: Board of Directors,
1998-Present.
California Lawyer Magazine, Editorial Advisory Board,
1990-Present; Chair, 1997-Present.
Board of Directors, California Supreme Court Historical Society, 2001-Present.
V. Charitable, Civic and Community Activity

26

Law Foundation of Santa Clara County Bar Association: Board of Directors, 1987-1990; President,
1988.

27

Suicide Prevention Center, Los Angeles: Board of Directors, 1984-1986.

28

Public Interest Clearinghouse, San Francisco: Board of Directors, 1986-1995.

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Exhibit I
Page 248

1

Death Penalty Focus: Board of Directors, 1987-1992.

2

City of San Jose, Citizen Task Force for Campaign Reform: Chair, 1992-93.

3

Santa Clara County Bench and Bar Historical Society: Director, Court of Historical Review, 1988Present.

4
5

Ascension Catholic Church, Saratoga: Eucharistic Minister, 1986-1990; Marriage Preparation
Instructor, 1987-1994.

6

VI. Honors and Awards

7

1983 Richard A. Vachon Memorial Award for
Community Service, presented by Loyola
Law School.

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17

1984 Winner of Ross Essay Prize, American Bar
Association.
1990 Justice Byrl R. Salsman Award for Contributions to Community and Profession, Presented by
Santa Clara County Bar Association.
1993 La Raza Law Students Association Award "In Recognition of Outstanding Dedication and
Commitment to Minority Admissions and Success in Law School"
1993 Santa Clara County Black Lawyers Association Award "For Setting the Standard of Excellence in
Achieving Diversity in the Legal Community"
1994 Recognition Award, Death Penalty Focus of California.
1996 St. Thomas More Award, St. Thomas More Society of Santa Clara County. (Co-recipient
With Martha A. Uelmen).
1997 Owens Lawyer of the Year, Santa Clara University School of Law Alumni Association.

18

2002 California Lawyer Attorney of the Year Award. See California Lawyer, March, 2003 at p. 18.
VII. Consulting Activity

19

Workshop Leader for 1976 Cornell Institute on Organized Crime, Ithaca, New York.

20

Special Review Committee to make recommendations concerning organization and operations of the
Los Angeles County District Attorney's Bureau of Investigation, 1975-1976.

21
22
23
24
25
26

Adjunct Professor for National Institute of Trial Advocacy in Reno, Nevada (1974) and Boulder,
Colorado (1975).
Consultant to the Rand Corporation from 1974-1976 in a study of methods to measure performance in
the criminal justice system. The results of this study were published in June, 1976 as "Indicators of
Justice: Measuring the Performance of Prosecution, Defense, and Court Agencies Involved in Felony
Proceeding" (R-1917-DOJ).
Consultant to Drug Abuse Council, Inc., Washington D.C., in assessing impact of proposals for
experimental heroin maintenance programs (1976).

27

Consultant to California Law Revision Commission on revising felony statutes of limitations (19821984), and
impact of court consolidation on criminal procedure (1999-Present).

28

Testimony before the Criminal Justice Committee of the California State Assembly in Hearings on Use

31

Exhibit I
Page 249

1
2
3
4

of Deadly Force by Police Officers (1974), Hearings on Reform of the Controlled Substances Act
(1976), Hearings on Prosecutorial Discovery (1982), and Hearings on Statute of Limitations (1984).
Testimony before the Committee on the Judiciary of the California Senate on Administration of Death
Penalty Laws (1986) and workload of California Supreme Court (1998). Testimony before the
Committee on the Judiciary, U.S. Senate, on Reform of the Grand Jury System (1976) and the
Committee on the Judiciary, Subcommittee on Crime, U.S. House of Representatives, on Police Use of
Deadly Force (1980).

Gerald Uelmen’s Publications

5
A. CALIFORNIA SUPREME COURT

6
7
8

Opinion: Dissent, "Supreme Court Reform: Diversion Instead of Division," 11 Pepperdine L.Rev. 5
(1983).
"Death Penalty Laws and the California Supreme Court: A Ten Year Perspective," 25 Crime and Social
Justice 78 (1987).

9
10
11

"The Know-Nothing Justices on the California Supreme Court," Western Legal History, Vol. 2 No. 1
Winter/Spring (1989).
"Review of Death Penalty Judgments by the Supreme Courts of California: A Tale of Two Courts," 23
Loy. of L.A. L.Rev. 237 (Nov., 1989).

12
"Depublication," Los Angeles Lawyer (magazine of L.A. Co. Bar Assoc.) Aug./Sept., 1990.

13
14
15

"Judicial Reform and Insanity in California - A Bridge Too Far," Prosecutor's Brief (magazine of
California District Attorneys Assoc.), May/June, 1979.
“Three-strikes Decision: State Supreme Court Shows that it's Tough on Legislative Sloppiness," San
Jose Mercury-News, June 23, 1996.

16
"Tracking the Splits: Fault Lines on the George Court," California Litigation, Winter, 1998.

17
18
19

"Sizing Up Justice Moreno," California Litigation, Fall, 2003.
California Lawyer Magazine

27

"Lucas Court: First Year Report," June, 1988, p. 30.
"Mainstream Justice: A Review of the Second Year of the Lucas Court," July 1989, p. 37.
"Losing Steam; California Supreme Court: The Year in Review," June, 1990, p. 33.
"The Disappearing Dissenters," June, 1991, p. 34.
"Plunging Into the Political Thicket," June, 1992, p. 31.
"Waiting for Thunderclaps," June, 1993, p. 29.
"The Lucas Legacy," May, 1996, p. 29.
"Seizing the Center," July, 1997, p. 34.
"Playing Center," July, 1998, p.45.
"Mosk's Top Ten Opinions," April, 1999, p. 46.
"Shifting the Balance," July, 1999, p. 54.
"Taming the Initiative," August, 2000, p.46.
"Friends of the Court," December,2000, p. 21.
"Courtly Manners," July, 2001, p. 37.
"All in the Family," November, 2001, p. 21.
"After Mosk," July, 2002.
"The Seven Year Itch," July, 2003, p. 22.

28

Los Angeles Times Op-Ed Page:

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Exhibit I
Page 250

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"A Shift in Style or an Ominous Warning?," December 16, 1985.
"Color Our New Court Bland," January 7, 1987.
"When Law Is in Doubt, Bring out the Canons," March 9, 1988.
"The Lucas Court is Suffocating," May 9, 1988.
"Will 'Judicial Restraint' Court Defer on Minimum Wage?" September 7, 1988.
"Depublication: The Court Makes Un-Cases," September 12, 1989.
"A Cure for the Court's Death Row Burnout" November 29, 1989.
"Does Laming the Legislature Upset the Constitution?," November 13, 1990.
"California, of all States, Needs a Court in Full Color," June 5, 1991.
"At the Highest Level, the Bar Could Use Civility Lessons," May 10, 1996.
"Bigger Court Won't Be Speedier," July 12, 1998.

6

Los Angeles and San Francisco Daily Journal:

7

"The Agony and the Irony: The Political Decisions of The Lucas Court," Daily Journal Report, June,
1992.
"How the Justices Stack Up," Daily Journal Report, June 4, 1993.
"Trashing the Chief Justice," Open Forum, Nov. 24, 1993.
"FAX From the Future," Open Forum, Jan. 12, 1994.
"The Lucas Court's Seventh Year: Achieving a Balanced Menu," Daily Journal Report, June 8, 1994.
"The Lucas Court's Eighth Year: Coming Back to Life," Daily Journal Report, June 14, 1995.
"Term of Transition: An Analysis of the Ninth and Final Year of the Lucas Court," May 13, 1996.
"Record Numbers," July 22, 1998.
"Capital Expenditure," July 30, 1998.
"Runs and Hits but No Errors," Sept. 13, 1999.
"He Was No Roger Maris," Oct. 18, 1999.

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B. CRIMINAL LAW AND PROCEDURE
The Preliminary Hearing in the District of Columbia, Lerner Law Book Co., Wash., D.C., 1967 (Coauthor).
Criminal Defense Techniques, Matthew Bender, 1979.
Authored the following chapters of this six volume treatise:Chapter 17: "Competency to Stand Trial"
Chapter 26: "Prior Conviction Impeachment"
Chapter 46: "Vacation of Illegal Sentences"
"Federal Sentencing Reform: The Emerging Constitutional Issues," in Constitutional Government in
America, Carolina Academic Press, 1979.
"Post-Conviction Relief for Federal Prisoners Under 28 U.S.C.," 2255, 69 W.Va.L. Rev. 277 (1967).
"Varieties of Police Policy: A Study of Police Policy Regarding the Use of Deadly Force in Los Angeles
County," 6 Loy. (L.A.) L.Rev 1 (1973).
"Proof of Aggravation Under the California Uniform Determinate Sentencing Act: The Constitutional
Issues," 10 Loy. (L.A.) L.Rev 725 (1977). (Also published as "Article of Special Interest" in West's
California Reporter Advance Sheets, 140 Cal. Rptr. No. 5, Oct. 10, 1977).
"Testing the Assumptions of Neil v. Biggers: A Classroom Experiment in Eye-Witness Identification,"
16 Crim. Law Bull. 358 (July, 1980).
"The Psychiatrist, the Sociopath and the Courts: New Lines for an Old Battle," 14 Loy. (L.A.) L.Rev. 1
(1980)
"Searches of Business Offices for Intermingled Documents," Criminal Defense (Magazine of Natl.
College for Crim. Defense), Nov./Dec., 1981.

33

Exhibit I
Page 251

1

"Prop. 8 Casts Uncertainty Over Vast Areas of Criminal Law," California Lawyer, July/Aug., 1982, p.
43.

2

"Making Sense out of the California Criminal Statute of Limitations," 15 Pacific L.J. 35 (1983).

3

"The Good Faith Exception to the Exclusionary Rule," 6 Whittier L.Rev. 979 (1984).

4

"Striking Jurors Under Batson v. Kentucky," ABA Criminal Justice, Fall, 1987.

5

"Litigating Retroactivity Issues Under Proposition 115," Calif. Crim. Def. Practice Reporter, July, 1990,
Vol. 10, No. 7, p. 217.

6
7

"The California Constitution After Proposition 115," 3 Emerg. Issues in State Const. Law 33 (1990).

8

"Replacing the Exclusionary Rule with No Fault Insurance," Calif. Crim. Def. Practice Reporter, March,
1992, Vol. 12, No. 3, p. 81.

9

"Federal Sentencing Guidelines: A Cure Worse than the Disease," 29 Am.Crim.L.Rev. 899 (1992).

10
11
12
13
14
15
16

"Victim's Rights in California," 8 St.John's J. Of Legal Commentary 197 (1992).
"2001: A Train Ride: A Guided Tour for the Sixth Amendment Right to Counsel," 58 Law & Contemp.
Probs. 13 (1995).
"The Anonymous Jury: Jury Tampering by Another Name?", A.B.A. Criminal Justice, Fall, 1994.
"Do Lawbreakers Have Too Many Rights?: Gaining Convictions Is Actually Easier Today," Syndicated
Column for Catholic News Service, June, 1996.
Los Angeles Times Op-Ed Page:

20

"The State Must Never 'Search or Seize' Our Private Thoughts," July 1, 1984.
"Preliminary Hearings, Tainted Juries and Public Rights," February 26, 1986.
"The Nincompoops Aren't in the Jury Box," October 19, 1991.
"Three Strikes and a Balk: Beneficial Statutory Clinker," April 25, 1994.
"Why Some Juries Judge the System," Jan. 24, 1996.
"What's a Fair Price for a Fair Trial?," March 18, 1998.
"Starr's Legacy May Include a New Privilege," April 23, 1998.
"Be Careful of a Wolf in Sheep's Clothing," March 3, 2000.
"Ghost of a Tribunal Should Haunt Ashcroft," Dec. 17, 2001.

21

C. DEATH PENALTY

22

"The Hanging Judge of Arkansas," National Law Journal, October 19, 1981, p. 11.

23

"A Concise History of Capital Punishment in California," Forum (Magazine of Calif. Attys. for Crim.
Justice) Sept./Oct., 1981.

17
18
19

24
25

"Capital Punishment," in Encyclopedia of the American Presidency (Simon and Schuster, 1994).

26

"The California Habeas Corpus Resource Center: Defining The Goal," 26 C.A.C.J. Forum, No. 1, p.47
(1999).

27

"Landmark Study Reveals a 'Broken' Justice System," San Francisco Daily Journal, July 21, 2000.

28

Los Angeles Times Op-Ed Page:

34

Exhibit I
Page 252

1
2
3

"The Death Penalty Costs Too Much," July 27, 1983.
"Death Penalty Issue is Alive and Well," May 15, 1985.
"Death Penalty: Blame Briggs, Not Court, April 22, 1986.
"If Defendant Concedes Guilt, Why Delay Death Penalty?" July 16, 1986.
"Finding the Fair Interval Between Sentencing, Death," May 17, 1990.
"Oops! Three Strikes, Death Penalty Out," March 4, 1994.

4

D. DRUG ABUSE

5

Drug Abuse and the Law, West Pub. Co., 1982 (2nd Edition). (Co-authored with Dr. Victor Haddox.)
(Updated Annually). [Click here to order this book].

6
7
8
9
10
11
12
13
14
15
16
17
18
19

"Should Heroin Use Be Decriminalized?" in Critical Issues in Criminal Justice, Carolina Academic Press,
1979.
"Controlled Substance Abuse," Encyclopedia of the American Constitution (Macmillan Publishing Co.,
1990).
"California's New Marijuana Law: A Sailing Guide for Unchartered Waters," Calif. St. Bar Jrnl.
(California Lawyer) Jan./Feb., 1976 (51:27).
"Providing Legal Services to the Addict: An Experimental Law School Clinical Program," 6 Contemp.
Drug Probs. 3 (1977). Co-authored with Jane Wolf-Eldridge.
"Sentencing Narcotics Offenders in Great Britain and the United States: A Comparison," 9 J. of Drug
Issues 491 (Fall, 1979).
"Prescribing Narcotics to Habitual and Addicted Narcotic Users," 133 Western J. of Medicine 539 (Dec.
1980). Co-authored with Dr. Forest S. Tennant, Jr.
"Cultivation of Marijuana Under the Uniform Controlled Substances Act: Shallow-Rooted Weeds," 13 J.
of Psychedelic Drugs, 247 (Fall, 1981).
"Narcotic Maintenance for Chronic Pain Relief: Medical and Legal Guidelines," 73 Postgraduate
Medicine 81 (Jan. 1983). Co-authored with Dr. Forest S. Tennant, Jr.
"Symposium, Punishing Drug Offenders: International and Comparative Perspectives," 13 J. Drug
Issues, No. 3 (Summer, 1983). Guest Editor

20

"The Impact of Drugs Upon Sentencing Policy," 44 St. Louis Univ. L. J.359 (Spring, 2000).

21

"A Defense Lawyer's Guide to Proposition 39," CACJ Forum, Vol. 28, No. 1, p. 37 (2001).

22

"Formulating Rational Drug Policy in California," 33 McGeorge Law Review 769 (Summer 2002).

23

"Compassion and Common Sense," San Jose Mercury-News, July 23, 1999.

24

"High Court Ignores Suffering," San Francisco Chronicle, May 20, 2001.

25

Los Angeles Times Op-Ed Page:

26

"G-Men,
Guns
Blazing,
Won't
Solve
Local
Drug
Problems,"
"A New Czar Means Same Old Folly in the Drug War," December 11, 1990.

27
E. JUDICIAL SELECTION AND INDEPENDENCE

28
35

Exhibit I
Page 253

April

10,

1989.

"Elected Judiciary," Encyclopedia of the American Constitution (Macmillan Publishing Co., 1990).

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

"Supreme Court Retention Elections in California," 28 Santa Clara Law Review 335 (1988).
"Will Reagan Go 'Judge-Shopping?'," National Law Journal, December 29, 1980, p. 13.
"Recalling 1932: The Bench Preserved," Los Angeles Lawyer, February, 1983
"Judging the Supreme Court Judges," Los Angeles Lawyer, May, 1986.
"Standards for Judicial Retention Elections," The Docket, Sept/Oct, 1986.
"The Biltmore Debate: Should the Justices Be Retained?," The Supreme Court Project, May 29, 1986.
"Standards for Judicial Retention Elections in California," Proceedings and Papers of the Chief Justice
Donald R. Wright Memorial Symposium on the California Judiciary, Senate Office of Research,
September, 1986.
"The Politicization of Our Courts: The Crocodile in Our Bathtub," California Litigation, Winter, 1992.
"Crocodiles in the Bathtub: Maintaining the Independence Of State Supreme Courts in the Era of
Judicial Politicization," 72 Notre Dame L. Rev. 1133 (1997).
"The Fattest Crocodile: Why Elected Judges Can't Ignore Public Opinion," ABA Criminal Justice,
Spring, 1998.
"Justices and Politics Don't Mix," California Bar Journal, October, 1998.
"A 'Death-Qualified' Judiciary," California Lawyer Magazine, September, 1999, p. 27.

16

"How to Soften the Judicial Mettle," San Francisco Daily Journal, October 14, 1998.

17

Los Angeles Times Op-Ed Page:

18
19
20
21

"Don't Plunge Judges Into Political Thicket," September 19, 1984.
"Assault on the Court," January 30, 1985.
"Shopping for Judges, California Style," September 30, 1986.
"In Politicizing the Courts, We're Buying and Selling Justice," October 16, 1987.
"Nation's Judges Fear Specter of Dread 5th Vote," September 13, 1990.
"Judges Hear Crocodiles Snapping," Feb. 19, 1997.
"Chief Justice George's Mistaken Case of Identity," Feb. 25, 1998.

22
23
24
25
26
27
28
36

Exhibit I
Page 254

APPENDIX B

1
2
1

1973 Cal. Stat. c. 719, §§ 1- 5 (S.B. 450); Senate Final History 1973 Cal. Stat. c.
719, §§ 1- 5 (S.B. 450).

2

Constitutional Issues Relative to the Death Penalty: Special Hearing of the
California Assembly Committee on Criminal Justice, January 24, 1977 (transcript).

3

Letter from Tom Bane, Assemblyman, California Assembly, to Mark Waldman,
Legislative Counsel, American Civil Liberties Union (May 23, 1977).

4

Press Release, Office of Governor Edmund G. Brown (May 27, 1977).

9

5

1977 Cal. Stat. c. 316, §9 (S.B. 155), effective August 11, 1977.

10

6

Senate Final History, 1977 Cal. Stat. c. 316, §9 (S.B. 155), effective August 11,
1977.

7

Letter from Senator John V. Briggs, Co-Chairman, Citizens for an Effective Death
Penalty, to Concerned Citizen (undated).

8

California Voters Pamphlet, General Election, Nov. 7, 1978, at 32-46.

9

California Assembly Committee on Public Safety, Bill Analysis, Senate Bill No.
2054 (1979-80 Reg. Sess.) as amended May 6, 1980; Senate Committee on
Judiciary, Bill Analysis, Senate Bill No. 2054 (1979-80 Reg. Sess.) as introduced.

10

Letter to John Briggs, Senator, California Legislature, from James R. Tucker,
Legislative Advocate, American Civil Liberties Union (June 13, 1980).

19

11

Miscellaneous Campaign Materials: Californians to Defeat Rose Bird (1985-1986).

20

12

Joint Hearing on Crime Victims Justice Reform Act, Proposition 115 on the June
1990 Ballot: California Senate Committee on Judiciary and Assembly Committee
on Public Safety, December 11, 1989 (transcript, staff analysis, written testimony
in support of and opposition to initiative).

13

1990 Crime Victims Justice Reform Initiative, Proposition 115 Manual: State of
California Department of Justice (1990).

14

California Ballot Pamphlet, Primary Election (June 5, 1990), Full Text of
Proposition 115.

15

California Ballot Pamphlet, Primary Election (June 5, 1990), Full Text of
Proposition 114.

3
4
5
6
7
8

11
12
13
14
15
16
17
18

21
22
23
24
25
26
27
28

37

Exhibit I
Page 255

1
2

16

California Senate Committee, Bill Analysis, March 30, 1993 Hearing, Senate Bill
No. 310 (1993-94 Reg. Sess.), as amended March 29, 1993.

17

California Assembly Committee on Public Safety, Bill Analysis, July 13, 1993
Hearing, Senate Bill No. 60 (1993-94 Reg. Sess.), as proposed to be amended.

18

California Senate Bill 32 (1995-96 Reg. Sess.), Bill Text, as introduced Dec. 9,
1994.

19

Letter to The Honorable Steve Peace, Member, California Senate, from Gregory D.
Totten, Executive Director, California District Attorneys Association (March 6,
1995).

20

California Senate Committee on Criminal Procedure, Analysis, March 7, 1995
Hearing, Senate Bill No. 32 (1995-96 Reg. Sess.), as proposed to be amended.

21

California Senate Committee on Criminal Procedure, Analysis, March 7, 1995
Hearing, Senate Bill No. 9 (1995-96 Reg. Sess.), as introduced.

22

Letter to Governor Pete Wilson, from Senator Steve Peace, California State Senate
(Sept. 15, 1995).

23

California Department of Finance, Enrolled Bill Report, Senate Bill No. 9 (1995-96
Reg. Sess.), as amended Aug. 21, 1995 (Sept. 22, 1995).

24

California Ballot Pamphlet, Primary Election (March 26, 1996), Full Text of
Proposition 195.

25

California Ballot Pamphlet, Primary Election (March 26, 1996), Full Text of
Proposition 196.

26

Letter to Mr. Charles Fennessey, Deputy Legislative Secretary, Governor’s Office,
from Gregory D. Totten, Chief Deputy District Attorney, Office of the District
Attorney, Ventura County, California (Dec. 4, 1997).

27

California Senate Committee on Public Safety, Analysis, April 21, 1998 Hearing,
Senate Bill No. 1878 (1997-98 Reg. Sess.), as introduced as reflected by proposed
amendments.

28

Letter to The Honorable Quentin L. Kopp, California State Senate, from Gregory
D. Totten, Chief Deputy District Attorney and Peter D. Kossoris, Senior Deputy
District Attorney, Office of the District Attorney, Ventura County, California
(April 23, 1998).

29

California Department of Finance, Bill Analysis, Senate Bill No. 1878 (1997-98
Reg. Sess.), as amended April 28, 1998 (May 13, 1998).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

38

Exhibit I
Page 256

California Assembly Republican Bill Analysis, Senate Bill No. 1878 (1997-98 Reg.
Sess.), as amended July 16, 1998.

31

California Assembly Committee on Public Safety, Analysis, June 23, 1998
Hearing, Senate Bill No. 1878 (1997-98 Reg. Sess.), as proposed to be amended.

32

Letter to The Honorable Gray Davis, Lieutenant Governor, State of California,
from Quentin L. Kopp, California State Senator (July 20, 1998).

33

California Assembly Committee on Appropriations, Analysis, July 29, 1998
Hearing, Senate Bill No. 1878 (1997-98 Reg. Sess.), as amended July 16, 1998.

34

California Assembly, Third Reading, Assembly Bill No. 1574 (1999-2000 Reg.
Sess.), as introduced Feb. 26, 1999.
California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 1574 (1999-2000 Reg. Sess.), as introduced Feb. 26,
1999.

36

California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 3 (1999-2000 Reg. Sess.), as introduced Dec. 7, 1999.

37

2

30

35

1

California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 625 (1999-2000 Reg. Sess.), as amended April 7,
1999.

38

California Senate Rules Committee, Third Reading, Analysis, Assembly Bill No.
1574 (1999-2000 Reg. Sess.), as introduced (Sept. 2, 1999).

39

California Ballot Pamphlet, General Election (March 7, 2000), Full Text of
Proposition 18.

40

1998 Cal. Stat. c. 629, § 2 (S.B. 1878) as chaptered Sept. 21, 1998, approved by
Proposition 18 on March 7, 2000, effective March 8, 2000.

41

California Ballot Pamphlet, General Election (March 7, 2000), Full Text of
Proposition 21.

42

California Senate Committee on Public Safety, Analysis, June 18, 2002 Hearing,
Assembly Bill No. 1838 (2001-2002 Reg. Sess.), as amended March 7, 2002.

43

Death Penalty Poll Casts Doubt On Veto Override, L.A. Daily Journal, March 29,
1977, at 1, 4.

44

Death Bill Passed By Senate on Slender Two-Vote Margin, L.A. Daily Journal,
April 1, 1977, at 1.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

39

Exhibit I
Page 257

45

Assembly Passes Death Penalty Bill, The Recorder, May 17, 1977, at 1, 6.

2

46

Briggs Nixes Death Penalty Vote Override, The Recorder, June 2, 1977, at 1, 7.

3

47

Reagan Backs Override Of Death Veto, The Recorder, June 16, 1977, at 1, 6.

4

48

Override Vote Set Today On Death Penalty, The Recorder, June 23, 1977, at 1.

49

Close Senate Override On Death Penalty, The Recorder, June 24, 1977, at 1, 6.

50

Pitchess Scores Solon On Move To Defeat Death Bill, L.A. Daily Journal, June 28,
1977, at 4.

51

‘Insurance Death Penalty’ Drive Planned, The Recorder, Nov. 3, 1977, at 1.

52

George Skelton, Briggs Launches Death Penalty Initiative Drive, L.A. Times, Nov.
10, 1977, at 3, 20.

53

New Death Penalty Proposal Unveiled, The Recorder, November 10, 1977, at 1.

54

Richard Bergholz, Briggs Hits ‘Weak’ Death Penalty Law, L.A. Times, Feb. 14,
1978, at A21.

55

W.E. Barnes, Sen. Briggs: ‘Your Life is in Danger’, S.F. Examiner & Chronicle,
April 2, 1978, at A10.

56

Bob de Carteret and C. Wong, State Bar Delegates Urge Defeat of Prop. 7
Initiative, L.A. Daily Journal, Sept. 17, 1978, at 1.

57

Barristers Vote ‘No’ On Prop. 7, The Recorder, Oct. 10, 1978, at 1, 11.

19

58

Ron Jarers, John Briggs Models a Role, S.F. Chronicle, Oct. 16, 1978, at 8.

20

59

Gayle Montgomery, District Attorneys Troubled by Prop. 7, Oakland Tribune, Oct.
24, 1978, at C11-12.

22

60

Major S.F. Opponents of Prop. 7, S.F. Chronicle, Oct. 26, 1978, at 6.

23

61

Editorial, We Oppose Proposition 7, Oakland Tribune, Oct. 28, 1978, at 20.

24

62

District Attorney Freitas Comes Out Against Prop. 7, L.A. Daily Journal, Nov. 2,
1978, at1.

63

Dan Morain, California Debate: Agony Over Resuming Executions, L.A. Times,
Aug. 18, 1985 at 1.

1

5
6
7
8
9
10
11
12
13
14
15
16
17
18

21

25
26
27
28

40

Exhibit I
Page 258

‘Blame Briggs, Not High Court’ For Reversals, The Recorder, Aug. 19, 1986, at 3.

65

Rebecca LaVally, The Death Penalty in California - Closing in on the First
Execution, California Journal, July 1, 1990.

66

Beth Barrett, Simpson Isn’t Seen as Likely Candidate for Death Sentence, Daily
News of Los Angeles, July 24, 1994, at N1.

67

Mike Lewis, Expansion of Capital Crimes Nears Passage, Sonoma County HeraldRecorder, Sept. 19, 1995, at 8, 15.

68

Pamela Martineau, Wilson Signs Bill Allowing Death Penalty for Murdering
Carjackers, Metropolitan News Enterprise, Los Angeles, California, Sept. 27, 1995,
at 9.
Jon Matthews, Death Penalty Bill for Carjack Killings Signed by Governor;
Legislation Won’t Take Effect Unless Approved by Voters in 1996 Primary, Fresno
Bee, Sept. 27, 1995, at A3.

70

John Schwada, Drive-by Measure Signed; Law Enforcement: Gov. Wilson Oks Bill
That Could Make Such Shootings a Capital Crime If Victims Die. Voters Must
Approve Change, L.A. Times, Sept. 28, 1995, at Part A, p. 3.

71

Letter to the Editor, Sacramento Bee, from Senator Steve Peace, California State
Senate (March 4, 1996).

72

Mike Lewis, Death Penalty Quietly Moves Into Broader Territory, S.F. Daily
Journal, March 20, 1996, at 1, 7.

73

State Propositions at a Glance, S.F. Chronicle, March 24, 1996, at 6/Z1.

74

Stuart Pfeifer, DA’s Crowded Death-Row Docket – Courts: 16 Defendants are
Targeted - the Most Ever - Despite the Decline in the County's Murder Rate,
Orange County Register, Oct. 20, 1996, at B01.

75

Peter Blumberg, Expanding Capital Punishment: Making More Crimes DeathEligible Has Public Appeal but Major Constitutional Problems, S.F. Daily Journal,
May 26, 1998, at 1, 9.

76

2

64

69

1

Propositions, California Journal, Feb. 1, 2000.

77

Endorsements, L.A. Weekly, Feb. 25, 2000, at 24.

78

Molly Selvin and Tim Rutten, Commentary: Garcetti's Key Third Term Goal:
Rampart Scandal Cleanup, L.A. Times, Feb. 25, 2000, at B7.

79

Editorial, Letters: Help Our Children, Vote for Prop. 18 . . ., Ventura County Star,

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

41

Exhibit I
Page 259

Feb. 29, 2000, at B09.

1
2

80

Stuart Pfeifer, California Courts Sentencing Fewer Killers to Death Row; Justice:
The Decline Comes as Violent Crime Falls, D.A.s are More Selective in Capital
Cases, L.A. Times, June 10, 2002, at Part 1, Metro Desk, p.1.

81

Harriet Chiang, How Prosecutors Choose Death Penalty; Stanislaus D.A. Says Laci
Case Meets Most of His Criteria, S.F. Chronicle, April 24, 2003, at A1.

82

Interactive Map: See Where Murderers Most Often get the Death Penalty,
Sacramento Bee, July 1, 2009.

83

Editorial, Letters, Sacramento Bee, March 19, 1996, at B7.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

42

Exhibit I
Page 260

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT J
DECLARATION OF DONALD H. HELLER

26
27
28

Exhibit J
Page 261

Exhibit J
Page 262

Exhibit J
Page 263

Exhibit J
Page 264

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25
26
27

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT K
TRANSCRIPT OF PROCEEDINGS FROM
TROY ADAM ASHMUS V. ROBERT K. WONG,
U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
CASE NO. C93-0594 (NOV. 19, 2010)

28

Exhibit K
Page 265

1

VOLUME 11

2

Pages 1560 - 1835

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

BEFORE THE HONORABLE THELTON E. HENDERSON, SENIOR JUDGE

6
7
8
9
10
11
12

TROY ADAM ASHMUS,

)
)
Petitioner,
)
)
v.
) NO. C93-0594
ROBERT K. WONG, ACTING WARDEN
)
OF SAN QUENTIN STATE PRISON,
)
)
Respondent.
)
_________________________________)
San Francisco, California
Friday, November 19, 2010

13
TRANSCRIPT OF PROCEEDINGS
14
APPEARANCES:
15
For Petitioner
16
17

BY:

18
19

For Respondent

20
21

BY:

22

HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
MICHAEL LAURENCE, EXECUTIVE DIRECTOR
ADRIENNE TOOMEY, ATTORNEY AT LAW
SUSAN GARVEY, ATTORNEY AT LAW
OFFICE OF THE ATTORNEY GENERAL
Department of Justice
455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102
RONALD S. MATTHIAS, SENIOR ASSISTANT AG
GLENN R. PRUDEN, SUPERVISING DEPUTY AG
ALICE B. LUSTRE, DEPUTY AG

23
Reported By:
24

CHRISTINE TRISKA, CSR 12826
Pro-Tem

25
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 266

1561

1

Friday, November 19, 2010

2

9:39 A.M.

3

P R O C E E D I N G S

4
5

THE CLERK:

Remain seated and come to order.

Court is

in session.

6

THE COURT:

Good morning, counsel.

7

MR. PRUDEN:

8

MR. LAURENCE:

9

THE COURT:

Good morning.
Good morning.

Good to see you again.

10

Could you state your appearances for the record?

11

MR. LAURENCE:

Michael Laurence, Habeas Corpus

12

Resource Center for petitioner.

13

MS. TOOMEY:

14

Adrienne Toomey, Habeas Corpus Resource

Center for petitioner.

15

MS. GARVEY:

16

Resource Center for petitioner.

17
18

And Susan Garvey for Habeas Corpus

MR. MATTHIAS:

Ron Matthias for respondent, real party

in interest, the People of the State of California.

19

MR. PRUDEN:

Glenn Pruden for respondent.

20

MS. LUSTRE:

Alice Lustre for respondent.

21

THE COURT:

22

Are there any preliminary matters we need to go

23

Welcome to court.

into?

24

MR. LAURENCE:

25

MR. PRUDEN:

No, your Honor.

I don't believe so.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 267

1562

1

THE COURT:

2

MR. LAURENCE:

3

THE COURT:

4

Let's get going.

Petitioner calls David Baldus.

Step forward and be sworn in, sir.

(Whereupon, the witness was sworn.)

5
6

Okay.

State your name for the record, please,

THE CLERK:

and spell your last name.

7

THE WITNESS:

My name is David, D-A-V-I-D,

8

Christopher, C-H-R-I-S-T-O-P-H-E-R, Baldus, B as in boy, A-L, D

9

as in David, U, S as in Sam.

10
11
12

DIRECT EXAMINATION
BY MR. LAURENCE:

13
14

You may proceed.

THE COURT:

Q

Good morning, Professor Baldus.

Let me begin by

asking you some questions about your qualifications.

15

Are you an attorney licensed to practice law?

16

A

Yes.

17

Q

When were you -- when were you admitted to practice

A

In Pennsylvania I was admitted in 1964, and in Iowa I

18
19
20

law?

was admitted in 1990.

21

Q

And where did you receive your undergraduate degree?

22

A

Dartmouth College.

23

Q

And have you received any advanced degrees?

24

A

Yes.

25

I have a L.L.B. from Yale Law School in 1964; an

L.L.M. from Yale Law School in 1969.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 268

1563

BALDUS - DIRECT/LAURENCE
1

Q

And do you have a --

2

A

I'm sorry.

3

And I also have a master's degree in

political science from University of Pittsburg in 1962.

4

Q

What is your current position?

5

A

I'm the Joseph B. Tye Professor of Law at the

6

University of Iowa College of Law.

7

Q

How long have you teaching law?

8

A

Since 1969.

9

Q

Have you had any other legal positions?

10

A

Yes.

I was the director of the Law and Social Science

11

Program at the National Science Foundation in the years of 1975

12

and '76; I was the director of the Center for Interdisciplinary

13

Legal Studies at Syracuse University College of Law in 1980 and

14

1981; and between 1988 and 1991 I served as a special master for

15

proportionality review of death sentences for the New Jersey

16

Supreme Court.

17
18

Q

Thank you.

And just for the record, you have your CV

in front of you?

19

A

I do.

20

Q

Have you published any books?

21

A

Yes.

22

Q

What topics?

23

A

I've published two books.

One is on proof of

24

discrimination I published in 1980, and another is on -- it's

25

called "Equal Justice and the Death Penalty."

It has to do with

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 269

1564

BALDUS - DIRECT/LAURENCE
1

race discrimination and comparative excessiveness in the

2

administration of death sentencing, principally in Georgia.

3

Q

Now, I notice your curriculum vitae lists eight pages

4

of additional publications.

5

individual publication.

6
7

I don't want us to go through each

Would you please summarize the general topics upon
which you have published?

8

A

Yes.

9

published.

There are three topics on which I have

The first has to do with issues of discrimination

10

generally, and specifically with respect to employment

11

discrimination.

12

the death penalty, with the focus on comparative excessiveness

13

and race discrimination in outcomes of those systems.

14

one extensive empirical study of jury awards in personal injury

15

cases.

16

Q

17

Second, has to do with the administration of

And I did

And have you had the opportunity to study the

administration of capital punishment --

18

A

In -- in California?

19

Q

-- apart from this?

20

Let me ask the question a little

bit more precisely.

21

Prior to your work in this case have you studied

22

the administration of capital punishment statutes in other

23

states?

24

A

25

Yes.

Yes.

I've taught capital punishment law for 10

years.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 270

1565

BALDUS - DIRECT/LAURENCE
1
2

Q

And have you examined the administration of statutes

in other states?

3

A

Yes.

4

Q

Which states?

5

A

Well, the states in which I've done empirical studies

6

are Georgia, Colorado, Maryland, New Jersey, and Philadelphia

7

County in Pennsylvania.

8
9
10
11
12
13
14

Q

And your declaration lists an additional state,

Nebraska.
A

Nebraska.

That's right.

Professor Woodworth and I

did a study in Nebraska in 1990.
Q

And in general, what types of issues were you looking

at in those state studies?
A

There are always two issues.

One is evidence of

15

racial discrimination in the administration of the death

16

penalty, and the second is comparative excessiveness in the

17

outcomes, that is, to what extent are similarly situated

18

defendants being treated comparably in the administration of the

19

death penalty?

20

Q

Can you give us some general estimate of the number of

21

studies you've conducted along those lines, either capital cases

22

or other types of empirical research in the legal setting?

23

A

Well, in each one of those states that I've mentioned

24

we've done an empirical study, and those are the studies that we

25

had done empirically.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 271

BALDUS - DIRECT/LAURENCE

1566

1

Q

Have you testified in court proceedings prior to

2

today?

3

A

Yes.

4

Q

And have you qualified as an expert?

5

A

Yes.

6

Q

How many times?

7

A

Twice.

8

Q

In what types of cases have you testified?

9

A

They are both homicide -- I'm sorry -- death penalty

10

cases.

11

habeas proceeding on behalf of McClesky, claims of race

12

discrimination in the administration of the Georgia death

13

penalty; and I also testified in 1995 in Pennsylvania in a

14

post-trial -- on a post-trial motion filed by Lance Arrington,

15

who claimed that the death penalty in Philadelphia County was

16

administered in a discriminatory fashion.

One was McClesky v. Kemp, where I testified in a federal

17

Q

And are those the only two times you have testified in

18

court?

19

A

Yes.

20

Q

Have you testified before legislative bodies?

21

A

Yes.

22

Q

Can you describe the topics that you've testified on?

23

A

I -- our study in Nebraska was commissioned by the

24

legislature of Nebraska, and they wanted to hear our findings,

25

so I testified to the committee -- the judicial committee there.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 272

BALDUS - DIRECT/LAURENCE
1

1567

And also I've testified in Pennsylvania before the

2

appropriate committees -- judiciary committees about the risk

3

of racial discrimination and the administration of the death

4

penalty in Philadelphia County.

5

Q

How long have you been studying, or -- how long have

6

you been studying the effects of race or other types of

7

influences in capital punishment statutes?

8

A

9

Twenty-five years.
MR. LAURENCE:

Your Honor, I move to have Professor

10

Baldus qualified as an expert in the study and evaluation of the

11

administration of capital punishment statutes.

12
13

THE COURT:
BY MR. LAURENCE:

14
15

Q

Professor Baldus, did you provide a declaration

regarding Troy Ashmus in this case in December 2010?

16

A

17
18

I find him so qualified.

Yes.
MR. LAURENCE:

216.

I'd like to show Petitioner's Exhibit

May I approach, your Honor?

19

THE COURT:

Right.

Let's have a continuing rule that

20

you don't need to seek -- either side seek permission to

21

approach the witness unless I for some reason change that.

22
23
24
25

MR. LAURENCE:

Thank you, your Honor.

BY MR. LAURENCE:
Q

Petitioner's Exhibit 216 is the declaration you

provided in September of 2010?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 273

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BALDUS - DIRECT/LAURENCE
1

A

Yes.

2

Q

Now, in preparation for your testimony here today, did

3

you discover minor corrections that needed to be made to that

4

document?

5

A

Yes.

6

Q

What corrections needed to be made?

7

A

We needed to adjust the findings for death sentencing

8

rates among all death-eligible cases to take account of the

9

approximately 600 cases in which a jury or a judge had ruled

10

that there was no special in the case.

11

did not account for that.

12

Q

13

declaration?

14

A

The original findings

15

And that affected a particular portion of that

Yes.

It affected small parts of Figure Two in Table

Five.

16

Q

Okay.

17

to be made?

18

A

Were there any other modifications that needed

One other modification related to one of Professor

19

Woodworth's findings, and that was under the analysis that he

20

conducted under the supplemental homicide report data.

21

estimate of the death eligibility in California was originally

22

5.2 -- 50.2, and the adjusted rate is 50.3.

23

Q

So you changed it from 50.2 to 50.3 in your

24

declaration?

25

A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 274

His

BALDUS - DIRECT/LAURENCE
1

Q

1569

I'd like to show you what has been marked as

2

Petitioner's Exhibit 219.

Are those corrections that you've

3

just mentioned noted in this declaration?

4

A

Yes.

5

Q

Did you make any other substantive changes to the

6

declaration?

7

A

8
9

MR. LAURENCE:

12
13
14

THE COURT:

17

It will be admitted.

(Petitioner's Exhibit 219 was received into evidence.)
BY MR. LAURENCE:
Q

Professor Baldus, just a few questions about the study

that you've conducted.

15
16

Your Honor, I move to admit

Petitioner's Exhibit 219.

10
11

No.

What was the general purpose that you had in
conducting this study?
A

To address issues of the scope of death eligibility

18

under California law during the Carlos Window period and under

19

current law, and to assess death sentencing rates during those

20

two periods of time among death-eligible cases.

21
22
23

Q

Can you describe the process that you undertook to

answer those questions?
A

Yes.

There are really seven parts to our analysis.

24

One was the design of the study; second one was attaining access

25

to data; to wit, probation reports; next was the creation of a
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 275

BALDUS - DIRECT/LAURENCE

1570

1

data collection instrument known as a DCI; the fourth was

2

developing a good body of law on the question of M1 liability

3

and the presence of special circumstances under California law.

4

The next was coding the cases and entering the data

5

into a machine-readable form and then cleaning the data that had

6

been entered, and then finally was an analysis of the data

7

conducted by Professor Woodworth and me and preparation of our

8

reports for you.

9

Q

Okay.

A lot of this is described in your declaration.

10

I only want to touch on a few matters that might assist us this

11

morning.

12
13

The third stage that you talked about is the
creation of a data collection instrument, the DCI.

14
15

Why do you employ such an instrument in this study?
A

Well, in all research of this type where people are

16

recording the elements of specific cases you want to have a

17

record that you can verify and be able to systematically analyze

18

in statistical analysis, and that requires machine-readable

19

data, and that can only be generated through the completion of

20

data collection instruments.

21

Also, that sort of information in this data

22

collection instrument allows you to verify after the coding

23

has been completed the validity of the coding that was done

24

by the coders.

25

To give you an example, if you look at a sum of the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 276

BALDUS - DIRECT/LAURENCE

1571

1

cases and you find that the coding is different from Carlos

2

Window to 2008 law, that would create a flag for you to say,

3

"Why are they coded differently?

4

that reflect the actual facts of the case?"

5

Was that a mistake, or does

Similarly, if you looked at a case that was

6

classified as death eligible but you saw no special

7

circumstances coded as having been present or found, that

8

would be a red flag for you as well to investigate further

9

the validity of the coding.

10

Q

So it assists not only in creating a record of the

11

coding itself, but also in the process of verifying the accuracy

12

of the coding?

13

A

Yes.

14

Q

The next stage you describe was familiarizing yourself

15

with the body of law that was relevant to California.

16

How did you undertake this task?

17
18
19

A

Well, initially I read Law Review articles about

California law and studied the treatises written to an extent.
But our main source of information about the

20

applicable law was an expensive coding protocol produced by

21

counsel for Ashmus -- Petitioner Ashmus in this case, which

22

analyzed in extensive detail the predicates for first-degree

23

murder that we were particularly interested in, and also the

24

factual predicates for each of the special circumstances

25

under California law.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 277

BALDUS - DIRECT/LAURENCE
1
2

Q

1572

And did you supplement that coding protocol with any

additional research?

3

A

4

guide you.

5

the details of cases.

6

Yes, we did.

Whenever you have a document, it's to

It never answers all the questions when you get into

So from time to time, we were to have an issue that I

7

couldn't resolve under the coding protocol, and I would create a

8

memo with a question in it and present it to counsel for Ashmus

9

and request an answer.

And we always got back an answer that

10

gave an opinion and generally cited authority, which we would

11

frequently consult.

12

Q

And throughout this process in reviewing the material

13

that was provided to you and your own independent research, did

14

you find any conflict between the material that was provided to

15

you and your own independent research?

16

A

No.

17

Q

Now, the next stage you talk about is the coding and

18

cleaning process.

19
20
21

Can you describe this process by which a case was
determined to be death eligible for not?
A

Well, the coding was done by 13 law students and eight

22

former law students who are recent graduates over an extended

23

period of time.

24
25

And because of the complexity of this process, I
realized that just relying on the independent judgments of the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 278

BALDUS - DIRECT/LAURENCE
1

1573

students and young lawyers would not be adequate.

2

So I undertook in May of 2009 what we call a

3

"cleaning process."

I had a team of five students who worked

4

with me full-time during that summer, and we would break the

5

cases down according to common factual patterns, such as the

6

presence of an individual's special circumstances.

7

We would then review the coding and the thumbnail

8

sketches that were created by the original coders to assess

9

their validity, and in course of that we created a narrative

10

summary for each case, which I signed off on on the basis of

11

my judgment that this was a correct coding of the case in

12

terms of its death eligibility.

13
14
15

Q

Did you meet with the coders and the cleaners during

that process?
A

Yes.

I met with them three times a week, and the

16

meetings would normally take one to three hours, and we would go

17

over the segments that they had done since the last meeting.

18

And those changes that we made then were entered

19

into another document, which was given to our data manager,

20

Richard Newell, and then he would enter those changes into

21

the computer to update the database to reflect our current

22

understanding of what the facts bearing on death eligibility

23

were in that case.

24
25

Q

Now, you said that cleaners were responsible for

common fact patterns.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 279

1574

BALDUS - DIRECT/LAURENCE
1

Were they broken up by special circumstances?

2

A

Yes.

3

Q

And so if I understand you correctly, the initial

4

coders were students who were given a series of cases.

5

went through the cases and filled out the DCI?

6

A

7

Correct.

They

Those were randomly given to the students.

As cases came in from California to us, we would

8

then assign them to the students who were available to do the

9

coding, and there was no effort made to try and do a

10

preliminary judgment of what special circumstances might be

11

applicable and divide them up.

12

And that's what made it a difficult

13

task for the students, because each one of them

14

would be hitting a case, often on which they had had

15

no prior experience.

16

summarize and clean them all with a special focus on

17

all of the cases that were similarly situated.

18
19
20
21

Q

That's why we wanted to

So, for example, would a student have been assigned

lying in wait as a special circumstance?
A

Yes.

financial gain.

One student was assigned lying in weight and
Folke Simons was his name.

22

Another student was assigned robbery, 17A.

23

student were assigned torture, et cetera, et cetera.

24

had them all assigned to one student or the other during this

25

period of time.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 280

Another
So we

1575

BALDUS - DIRECT/LAURENCE
1

And that cleaning process went on essentially

2

full-time with these students over the summer of 2009, but it

3

continued, frankly, right up to the end before we filed our

4

first declaration.

5

continued to supplement and expand the database as new

6

information came in from California.

7
8
9

Q

And then it continued thereafter as we

Now, is this an unusual practice that you are

continuing to review coding decisions?
A

No.

No.

This is common practice in any kind of

10

research of this type, where you have complicated issues that

11

students and young lawyers are being asked to assess.

12

common practice.

13
14

So it's a

It's good practice.

THE COURT:

Excuse me for a second.

You said until

new information came in from California.

15

THE WITNESS:

16

THE COURT:

17

THE WITNESS:

Yes.

What would be an example of that?
Those, your Honor, would be probation

18

reports.

19

reports that the Attorney General's Office was providing us, or

20

providing counsel, and then they would send it to us.

21

See, we were getting our information from probation

And those came in bits and pieces over a long

22

period of time, several years.

23

THE COURT:

24
25

Okay.

Thank you.

BY MR. LAURENCE:
Q

And at some point you were involved in the final
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 281

1576

BALDUS - DIRECT/LAURENCE
1

decision making regarding an individual coding case.

2

A

Yes.

3

Q

The next stage you talked about is the analysis

4

process.

5
6
7
8

I signed off on each one of them.

Can you briefly describe what you went through to
analyze the data that you collected?
A

We focused on the questions that counsel for

Petitioner Ashmus put to us.

9

What was the death eligibility of these homicide

10

cases under California law during the Carlos Window, during

11

the 2008 periods?

12

prosecuted and sentenced?

13

How were those cases charged and

And that's what focused our analysis.

We were

14

guided by the instructions that we received from counsel, and

15

then Professor Woodworth and I would proceed to answer those

16

questions.

17

questions are what you find in the declaration.

18
19
20

Q

And those are the answers -- the answers to those

Now, the practices you used during this study, were

they novel or untested methodologies?
A

No.

They were generally accepted standards, and

21

Professor Woodworth can explain with respect to the statistical

22

practices that he used.

23

But with respect to the approaches that I used in

24

developing the database, they were standard practices that

25

are generally accepted in the community and have been applied
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 282

1577

BALDUS - DIRECT/LAURENCE
1

in hundreds of cases.

2

Q

3

this case.

4

A

5

Okay.

You provided several different declarations in

Why?

Because the database continued to change over time.
See, we weren't in the situation where we could

6

just wait until we got all the data.

7

deadlines that you would impose upon us.

8

We were operating under

And we were asked to submit a report by -- in

9

November of 2009.

And so we had stop what we were doing and

10

create the report.

And the first report had 608 -- sorry.

11

It had 1,618 cases in it, and that was the basis of our first

12

declaration that we filed.

13

Then the reports continued to come in, as I indicated

14

to his Honor here, over time, and then we would code those and

15

get them entered, and then we would get instructions of a new

16

deadline.

17

So then we would create a new declaration.
And then the second one was in December 2009, and

18

at that point we had 1823 cases.

19

February 2010.

20

1900, which is where it stands right now.

21

of that we had new cases.

22

during this period of time.

23

"close calls."

24
25

Then the next one was in

By that time the database had expanded to
And in the course

Also, we were cleaning the cases
We were reassessing what we call

When we were doing this kind of research, often it
will be unclear when you don't have full control of all of
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 283

BALDUS - DIRECT/LAURENCE

1578

1

the cases, whether or not you can make a firm judgment about

2

a case.

3

So we had a coding option called a "close call."

4

But as we learned more, particularly as I learned more about

5

the law and its applicability in these cases, we decided that

6

many of those could be definitively coded as death eligible

7

or not death eligible.

8
9
10
11
12
13

So we made a number of those changes -- I think it
was about 90 cases or so where we made those changes, and
that affected the substantive results to an extent.
Q

And what were the effects of overall -- what were the

effects of the changes on the overall conclusions?
A

They were quite minor.

To give you an example,

14

between the first period, the death eligibility rate for

15

first-degree murder under Carlos Window was 86 percent, and that

16

was when we had 1618 cases.

17

from 86 to 91.

18

By the time we had -- 1900 had gone

And as for the murder one and -- sorry -- the

19

murder two and the voluntary manslaughter cases there were

20

similar small differences.

21

Q

The most recent change you made that you described

22

earlier in your testimony was to remove 613 cases from Figure

23

One -- Figure Two.

24
25

A

I just want to verify that that's the exact number.
Let's see.

Yes.

613 cases.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 284

BALDUS - DIRECT/LAURENCE
1
2
3
4

Q

1579

What affect did it have on the death sentencing rate

when you removed 613 cases from the analysis?
A

It changed the death sentencing rate among all

death-eligible cases from 4.4 percent to 4.6 percent.

5

Q

So a difference of .2 percent?

6

A

Correct.

7

Q

Now, let me just now move quickly to your findings.

8
9
10

Can you give us just a general summary of your
findings?
A

Certainly.

The first question we addressed was the

11

rate of death eligibility among cases overall and broken down by

12

crime of conviction.

13

And for all cases we found that the death sentence

14

rate was 55 percent under Carlos Window law and 59 percent

15

under 2008 law.

16

Q

17

Let me stop you for one second so I can be clear.
The 55 percent figure for Carlos Window includes

18

first-degree murder, second-degree murder and voluntary

19

manslaughter?

20

A

Yes.

21

Q

So of all crimes of conviction the death eligibility

22

rate is 55 percent?

23

A

Yes.

24

Q

Can you give us, please, the first-degree murder

25

conviction rate for Carlos Window law?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 285

BALDUS - DIRECT/LAURENCE
1

A

2

95 percent.

3

Q

4
5

Yes.

1580

It was 91 percent, and for 2008 law it was

So let me make sure I understand you correctly.
If somebody is convicted of first-degree murder

that's in the universe of your cases.

6

Of those cases of somebody who's been convicted of

7

first-degree murder, 91 percent are death eligible under

8

Carlos Window law?

9

A

Yes.

10

Q

And 95 percent are death eligible under 2008 law?

11

A

Yes.

12

Q

When you include non-first-degree murder cases, the

13

second-degree murder cases and the voluntary manslaughters, the

14

numbers are 50 --

15

A

55 for Carlos Window And 59 for 2008.

16

Q

Okay.

17

A

We also -- do you want me to continue?

18

Q

Sure.

19

A

We also focused on death-eligibility rates among cases

20

that were factually M1, and we found that under Carlos Window

21

law 80 percent of the cases that we deemed to be factually M1

22

were death eligible, and the percent under Carlos -- sorry --

23

under 2008 law was 86 percent.

24
25

Q

Let me ask you a question about that.
The factually M1 cases are cases that did not
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1

1581

necessarily result in a first-degree murder conviction?

2

A

Yes.

3

Q

They are cases that were -- may have been but also

4

were second-degree murder convictions and voluntary manslaughter

5

convictions that you determined could have sustained a

6

first-degree murder conviction?

7

A

Yes.

There are a number of cases that resulted in

8

voluntary manslaughter and second-degree murder convictions,

9

which, according to our rules of evaluation, if it was not

10

controlled by an authoritative decision by a judge or a jury we

11

would make an assessment of whether or not that case was

12

factually M1.

13

Q

I would like to turn your attention now to the second

14

area of your findings, which is California -- comparison of

15

California's death eligibility rates to other states.

16

A

Yes.

17

Q

And in particular let me ask you to turn to Table

18

Three of Exhibit 219 which is at page 18.

19

A

Would you like me to proceed?

20

Q

Yes.

21
22

What did you find in comparing California's

rates to other states?
A

We did this in two ways.

Number one, we compared our

23

findings with findings of other studies that had been done that

24

were comparable in terms of methodology to our California study.

25

Specifically, those were studies that Professor
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1

Woodworth and I had done in New Jersey and in Nebraska, and

2

also studies that were done by Professor Paternoster in

3

Maryland.

4

We had either conducted these or consulted with

5

Paternoster and knew exactly the kind of methodology we were

6

using, and it was almost identical to what we were using in

7

California, so I thought those were good bases for comparing.

8
9
10

Q

Were there any other state comparisons that you could

have made using the same methodology?
A

No, there weren't.

I didn't know of any other studies

11

that had the exact kind of methodology that we were using here

12

in California other than these.

13

Q

14

Let's take these one by one.
Part one of Table Three, you make a comparison

15

among New Jersey, Maryland and California.

16

What were the results?

17

A

The results were that the death eligibility rate --

18

this is the post-Furman period -- were 21 percent in both New

19

Jersey and Maryland.

20

under Carlos Window law and 68 percent under 2008 law.

21

Q

In California the rates were 64 percent

So let me make sure I'm clear about this.

The studies

22

that you looked at in New Jersey and Maryland only involved

23

first-degree murder convictions and second-degree murder

24

convictions?

25

A

That's right.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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BALDUS - DIRECT/LAURENCE
1
2
3

Q

1583

So you adjusted your data to get the 64 percent figure

and the 68 percent figure you just gave us?
A

Exactly.

Those were perfect matches of what the

4

findings were in those states because they were based on

5

screening and analysis of only first-degree murder and

6

second-degree murder cases, and we had done all three

7

categories, including voluntary manslaughter, so we just limited

8

the data for that analysis to those that had resulted in the

9

first-degree murder or second-degree murder case.

10
11

Q

And your conclusion is that the California death

eligibility rate is three times those two states?

12

A

Yes.

13

Q

In Part Two you looked at Nebraska, and Nebraska --

14

first let me ask you, what is the universe of cases that were

15

considered in Nebraska?

16

A

Right.

In that study we -- which Professor Woodworth

17

and I conducted -- we screened M, first-degree, second-degree

18

and voluntary manslaughter cases exactly as we did here in

19

California.

20

And there we found on the basis of that analysis a

21

25 percent death-eligibility rate.

When we looked at the

22

comparable findings for California, and by that I mean those

23

that resulted from the screening of both first, second-degree

24

murder and voluntary manslaughter, the death-eligibility

25

rates were 55 percent under the Carlos Window law and
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1584

59 percent under 2008 law.

2

Q

So over double Nebraska's rate?

3

A

Yes.

4

Q

Now, Part Three of this table you looked at different

5
6

data.
A

Can you tell us what you looked at here?
Yes.

We looked at the findings of a study done by

7

Professor Jeff Fagan, a criminologist and law professor at

8

Columbia University.

9

And what he did was take the information that's

10

reported in the supplemental homicide report that's produced

11

by the FBI, and it lists for every homicide in the country

12

that's reported to them information on seven or eight factors

13

that are commonly the predicates for aggravating

14

circumstances under state laws.

15

And on the basis of this information he estimated

16

what the death-eligibility rate was in each jurisdiction.

17

And that's the data that we used that he loaned to us for

18

this purpose.

19
20

Q

Now, if I understand correctly, in Maryland and

Nebraska the data source were probation reports?

21

A

That's right.

22

Q

And in -- I'm sorry -- in New Jersey -- and New Jersey

23

and Nebraska the -- they were probation reports?

24

A

Correct.

25

Q

In Maryland what was the data source?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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A

1585

It was a report on each case that was maintained by

2

the prison system that was very comparable -- in the opinion of

3

Professor Paternoster very comparable to a probation report.

4

felt fully confident in relying on it.

5
6

Q

The supplemental homicide report data was also used to

produce Table Four in Figure One in your declaration.

7
8

He

I'd ask you if turn to Figure One, which is on page
26 --

9

A

(Complies.)

10

Q

-- what does this figure tell us about the death

11
12

eligibility among the states?
A

The figure lists along the horizontal axis, the X

13

axis, it lists the death-eligibility rates -- the range of

14

death-eligibility rates among all states that was found by

15

Professor Fagan's analysis.

16

For example, over -- and the heighths of bars indicate

17

how many states have a death-eligibility rate at that level.

18

For example, if you look at the first bar on the left you see at

19

a rate of 13 -- the death-eligibility rate of 13 percent you see

20

one state, Alabama.

21

And then if you look, for example, at the third bar

22

in from the left, you can see that there are four states that

23

have a death-eligibility rate of 18, and the median rate when

24

you look at these numbers is 23 for all states.

25

Q

And that's death-eligibility rates?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1586

1

A

Yes.

2

Q

Where is California on this figure?

3

A

Thirty-eight.

4

Q

At the far right side of the --

5

A

Yes.

6

Q

Did you -- did you do some further analysis of this

7

data to incorporate data that you conducted -- that you

8

collected during your study?

9

A

10

Yes, we did.

It was conducted by Professor Woodworth.

And the supplemental homicide report has

11

information on a small species of what we call "lying in

12

wait" here in California.

13

embraces only a tiny little fraction of what is death

14

eligibility under California lying in wait law.

It was a sniper killing, and that

15

So what Professor Woodworth did was to adjust the

16

underlying supplemental homicide report to reflect for that

17

variable, substituted the lying-in-wait information that we had

18

for the sniper information that was present in that data.

19

See, when the police in California report to the

20

FBI, they just report snipers.

21

lying-in-wait information as it's defined by California law,

22

and we made an attempt to conform the database of the

23

supplemental homicide report to reflect the realities of

24

California lying-in-wait law.

25

Q

They aren't reporting

And that rate once it's correct is what?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1587

1

A

50.3.

2

Q

And finally you looked at death sentencing rates in

3

California, and I'd ask you to turn to Table Five on page 29.

4

A

(Complies.)

5

Q

And would you explain how you calculated the death

6
7

sentencing rates that are depicted in row Four of Table Five?
A

Certainly.

We -- these rates are based on our

8

estimates of the number of death sentences in the universe of

9

27,000 cases 705 we estimate existed during this period, and the

10

number of death eligibility cases, which we estimated at 15,394.

11

And this is simply a calculation of 705 divided by the 15,000

12

cases, and it produces a death sentencing rate of 4.6 percent.

13

Q

And that's for the time period throughout your study?

14

A

Yes.

15

Q

What's the Carlos Window death sentencing rate?

16

A

6.8 percent.

17

Q

Now, did you calculate the death sentencing rates for

18

death-eligible first-degree murder convictions?

19
20

That's in column D as in David.

And I'm going to actually direct your attention to the
end of paragraph 62 on page 33 of your declaration.

21

A

Yes.

22

Q

Now, that has a death-sentencing rate for those who

23

And that was 8.7 percent.

are convicted of first-degree murder?

24

A

Yes.

25

Q

8.7 percent of those who were death eligible received
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1588

a death sentence?

2

A

Yes.

3

Q

Did you also calculate the rate for those under the

4

Carlos Window law?

5

A

Yes.

6

Q

And what was that rate?

7

A

9.4 percent.

8

Q

So it was a slightly higher death-sentencing rate

9

under Carlos Window than throughout the time period?

10

A

Yes.

11

Q

Now, finally I just want to talk to you a little bit

12

about the -- your methodology and the validity of your study.

13

Did you seek any assessment of the validity of your

14

methodology?

15

A

Yes.

16

Q

What steps did you take?

17

A

I modified the declaration that we submitted into a

18

format of a Law Review article and submitted it for external

19

review to four experts in the field who have distinguished

20

themselves over the years.

21

MR. MATTHIAS:

Excuse me.

Excuse me, your Honor.

22

We had an understanding that direct testimony would

23

all be presented by declaration.

This description of

24

validating the study is mentioned nowhere in the declaration;

25

likewise, the entire description of the cleaning process that
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1

Professor Baldus described is mentioned nowhere in the

2

declaration.

3

today, this morning.

4

impaired my ability to prepare for this hearing.

5

I'm hearing about this for the very first time
It's gravely impaired and unfairly

I would ask that the witness confine his testimony

6

to what is set forth in the declaration.

7

agreement.

8
9
10

That was the

That was the order.

MR. LAURENCE:

Your Honor, I think the cleaning

process clearly is described in his declaration.

I just

clarified exactly what that process was.

11

I will withhold the question about assessment for

12

redirect examination.

13

the methodology.

14

I assume that he was going to attack

me to go into this.

If he doesn't, then there's no reason for

15

Thank you, Professor Baldus.

16

THE WITNESS:

17

THE COURT:

Certainly.

Let's review again, if you want, any

18

prejudice you feel you suffered by this examination, but I'll

19

assume we are okay as we go forward.

20

MR. MATTHIAS:

Well, I would really like to address

21

that.

22

the Court that the cleaning process is described in the

23

declaration.

24
25

I mean, Mr. Laurence is completely wrong when he tells

The cleaning process is mentioned.

It's in a

sentence or two, and the sum total of that is what Professor
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1

Baldus did.

2

five students getting together, sorting them by type and

3

category, going through it, and none of that is in the

4

declaration.

5

There is not one word of a special committee of

I don't know anything about this.

It's extremely difficult to prepare for a hearing

6

with this kind of extremely complex material unless we abide

7

by the rules and actually give each other what the testimony

8

is going to be in the declaration.

9

that process.

10

That's why we settled on

I'm hearing about a cleaning process, a very

11

technical development, obviously.

12

a seven-step process.

13

point went on for at least three, five minutes.

14

do I know about.

15

hearing about it for the first time today.

16

It was Step Number Five of

Mr. Laurence's examination on that
None of it

None of it does the Court know about until

Events like this have occurred periodically over

17

the course of this litigation.

18

It's probably the most time sensitive in terms of the element

19

of surprise, and I find it profoundly unfair, and I think the

20

Court should not permit it.

21

This is the most egregious.

But that's my bid on prejudice.

If I knew more

22

about it and had time to research it and prepare examination

23

and then tell you what that examination would have been like

24

had I known earlier, then maybe I could articulate more fully

25

and more specifically the degree of prejudice.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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1

1591

But standing here today responding to something

2

that I've heard about just a few minutes ago, no, I can't.

3

can't do any better than I've just done, your Honor.

4

Would it be all right if I stand there?

5

THE COURT:

6

MR. MATTHIAS:

I

7
8

Absolutely.
Thank you.

CROSS-EXAMINATION
BY MR. MATTHIAS:

9

Q

Good morning, Professor Baldus.

10

A

Good morning.

11

Q

Welcome to the Bay Area.

12

A

Thank you very much.

13

Q

Now, Professor, in one of the books you wrote, the one

It's good to see you.

14

you co-authored with Professor Kohl, you said that "the form and

15

content of statistical evidence is shaped by the requirements of

16

substantive law."

17

I assume, then, in designing the study that you are

18

testifying about today, you were very mindful of some body of

19

law; correct?

20

A

Yes.

21

Q

And what was that body of law?

22

A

It was the California law that defines the elements or

23

the factual predicates for M1 liability, first-degree murder

24

liability, and the law that defines the factual predicates for

25

each of the special circumstances as defined in California law.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 297

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

Q

1592

And is there some more overarching body of law that

makes any of that stuff you just described important?
A

Well, the constitutional law as defined by the United

4

States Supreme Court.

5

the states have to satisfy to have a constitutional statute.

6

Q

7

Okay.

That's what defines the requirements that

That's exactly what I was getting at.

I noticed the Furman decision, for example, is

8

cited.

It has 144 appearances in your 36-page declaration.

9

I assume there's something in Furman that was a major

10

inspiration for the scope and purpose of this study; is that

11

right?

12

A

Yes.

13

Q

And what is the essential teaching of Furman to your

14
15

understanding?
A

As I understand it we looked first as what Furman held

16

was unconstitutional.

17

eligibility is all common law murder under Georgia law was

18

overly broad and did not narrow it sufficiently to reduce the

19

risk of arbitrariness in the administration of that statute.

20

That was the first prong of the decision.

21

It held that a statute that defines death

The second prong of it was, that if you look at the

22

death-sentencing rate among first-degree murder in that

23

conviction you could see that it was very low, and that

24

provided a significant part of the Court's judgment that in

25

operation it was arbitrary, because it was -- such a very
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 298

BALDUS - CROSS-EXAMINATION/MATTHIAS

1593

1

small fraction of the death-eligible cases actually resulted

2

in death sentences.

3

Q

So what you just described as the second prong --

4

A

Yes.

5

Q

-- that to your understanding is a holding of Furman?

6

A

Well, those are the two bases of the decision.

The

7

holding -- I was just saying what were the two elements of that

8

holding.

9

If you want to get the more general principle it is

10

you can't have a statute as broad as pre-Furman Georgia

11

common law murder.

12

eligibility in some important ways, and most of the states

13

did.

14

then they would define the groups of statutory aggravating

15

circumstances like this state has done with special

16

circumstances.

17

You've got to narrow it and limit death

They limited it generally to first-degree murder, and

Q

My question was, is that second prong to your

18

understanding a holding that there is some statistical test that

19

a state must meet in order to satisfy constitutional standards?

20

A

Well, the Court didn't define it as a test, but that

21

was a fact of the case, and the court held that that system was

22

inadequate.

23

Q

It was arbitrary.

And is the evil that the Supreme Court sought to

24

prevent by its Furman decision -- would you think it would be

25

fair to say that the evil it sought to prevent was the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1

imposition of wanton and freakish death sentences?

2
3
4
5
6
7
8
9
10

Is that a fair summary in your view?
A

It would be a form of arbitrariness.

That's

what that's come to be known as generally.
Q

Okay.

Are there -- are there any other constitutional

teachings that informed your study?
A

I'm sorry.

What did you -- would you say it again,

please?
Q

Are there any other constitutional teachings that

informed your study?

11
12

Yes.

I'll move this closer.
A

No.

I'm sorry.

I would say that that is the central basis of the

13

law that inspired us that came from the United States Supreme

14

Court.

15

Q

Okay.

16

A

Certainly.

17

Q

And you know what Gregg v. Georgia says about Furman?

18

A

It said that Georgia statute did not violate Furman.

19

Q

The new Georgia statute?

20

A

Yes.

21

I'm sure you've read Gregg v. Georgia?

The amended Georgia statute as it existed in

1974 did not violate Furman.

22

Q

Did Gregg say anything about what Furman held?

23

A

It held that the system that existed before Furman was

24

unconstitutional, is what it said.

It said it was arbitrary,

25

and it was arbitrary because there was no effort to limit the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1

death eligibility.

2

was limit death eligibility with 11 or 12, if I remember,

3

statutory aggravating circumstances.

4

And what the Georgia post-Furman statute did

They had to exist along with -- it didn't change

5

the degree of murder.

6

post-Furman Georgia, but it did define special circumstances

7

that had to exist.

8
9

Q

It was still common law murder in

Let me read you one sentence from Furman that begins

with the words "Furman held" --

10

A

You are reading from Gregg?

11

Q

Yes.

12

"Furman held only that in order to

13

minimize the risk that death would be

14

imposed on a capriciously selected group

15

of offenders the decision to impose it had

16

to be guided by standards so that the

17

sentencing authority would focus on the

18

particularized circumstances of the crime

19

and the defendant."

20

Now, does that comport with your understanding of what

21
22

Furman held only?
A

That is a more artful statement of what I intended to

23

say, and that is that the special circumstances -- here in

24

California we call them "special circumstances."

25

else they are called "aggravating circumstances."
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1

That's exactly what the Court is saying that that

2

statute had aggravating circumstances, which narrowed

3

sufficiently to meet the requirements of Furman.

4

with that completely.

5

completely.

6

Q

7
8
9

I agree

The language you read I agree with

And how did that passage that I just read from Gregg

affect your study?
A

It affected my study -- my understanding was that

those that had to actually narrow, so it leaves an open question

10

about the extent to which the special circumstances do narrow

11

here in California.

12

question for us:

13

And that's what created the empirical

To what extent do they narrow adequately?

And according -- the Court in Gregg said in that

14

situation they did narrow adequately just simply on the basis

15

of the face of the statute.

16

They weren't looking at the application of those aggravating

17

circumstances under the pattern of cases that went through

18

the system as we did here in California.

19
20

Q

That's all they were looking at.

My understanding is that your study seeks to sort

California cases according to their factual quality.

21

A

Yes.

22

Q

There's no effort in your study to ascribe any

23

significance whatsoever to other information relating to the

24

defendant himself or herself but not directly related to the

25

circumstances of the capital crime or the crime -- the murder
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
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BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

being examined; is that correct?
A

Well, the -- our assessment of the applicability or

3

presence in a case of a special circumstance is heavily

4

dependent upon the circumstances of the defendant and what

5

transpired as reported in the probation reports.

6

Q

That's exactly the distinction I'm drawing.

Facts

7

about the defendant unrelated to the crime, like, bad childhood,

8

those kinds of -- the sort of the thing that we would normally

9

call perhaps mitigating evidence.

10

A

11

No.

We didn't consider that.

It's not relevant.

In my understanding as advised by counsel,

12

mitigating evidence about the history of a defendant is not

13

relevant in any way to the question of the death eligibility

14

of a given offense.

15
16
17

Q

So when -- back to the quoted language from Gregg.

When Gregg said:
"Furman held only that in order to

18

minimize the risk that death would be

19

imposed on a capriciously selected group

20

of offenders the decision to impose it had

21

to be guided by standards so that the

22

sentencing authority would focus on the

23

particularized circumstances of the crime

24

and the defendant."

25

Your study does not focus on those last three words
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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BALDUS - CROSS-EXAMINATION/MATTHIAS
1

"and the defendant" except to the extent that it relates to the

2

crime.

3

A

4

study.

5

Well, I don't agree with your statements about our

At the time that Gregg was decided there had been

6

no focus at all on mitigation.

It never crossed the court's

7

mind.

8

aggravating circumstances defined in the statute.

9

That's all they were interested in as I read Gregg, and

They were focused strictly on whether or not there was
Full stop.

10

that's that general consensus in the literature as I read it

11

as well about the meaning of Gregg.

12

Q

Very well.

13

A

Okay.

14

Q

Lockett versus Ohio.

15

A

Certainly.

16

Q

Decided six years after Furman.

17

Let's move on to Lockett.

You've read it?

That case said that:

18

"The sentencer cannot be precluded

19

from considering as a mitigating factor

20

any aspect of the defendant's character or

21

record and any of the circumstances of the

22

offense that the defendant proffers as a

23

basis for a sentence less than death."

24

My question is, how, if at all, did that teaching, the

25

teaching of Lockett inform your study?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 304

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

1599

It didn't inform our study because that decision was

2

based on the application of the statute by decision makers.

3

That was not our focus.

4

Our focus was strictly on whether or not the crime

5

is death eligible without respect to mitigation that may have

6

existed in this case.

7
8

Q

It's not relevant to our inquiry.

It's relevant to how a state must run its death

penalty regime.

9

A

Oh, exactly.

10

Q

And your study does not take it into account?

11

A

That's right.

Because that wasn't part of the

12

administration of the statute that we were interested in.

13

were interested only in the legislative decision, not the

14

administration of it by the officials who apply the law.

15

Q

We

I appreciate you may have had a reason for not, but

16

I'm just establishing the point that you didn't take Lockett

17

into account in your structure of your study.

18

A

No.

19

Q

Can you tell me what Georgia's pre-Furman

20

death-sentencing rate among death-eligible murder trial

21

convictions was?

22

A

Fifteen percent.

23

Q

Now, how do you know that?

24

A

Because I did a study of pre-Furman data.

25

Professor Woodworth and I in our book "Equal
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 305

1600

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Justice in the Death Penalty," we -- in our study we were

2

contrasting the death sentencing system before Furman with

3

the death sentencing system after Furman in the state of

4

Georgia.

5

And we lay out in the book the basis of our

6

analysis, which was about 295 pre-Furman cases that we

7

analyzed, and that produced a rate of 15 percent, which is

8

right in the mid range of the rate that the United States

9

Supreme Court dissenting opinions stated was the

10

death-sentencing rate in pre-Furman Georgia.

They said it

11

was between 15 and 20 percent among murder-conviction cases,

12

and we were pleased to see that our data conformed with their

13

judgment, their estimate based on very little data was.

14

Q

So you know it from your own research?

15

A

Yes.

16

Q

And you believe it to be confirmed by a passage in the

17

dissenting opinions?

18

A

Yes.

19

Q

In Furman?

20

A

Yes.

21

Q

Do you understand the Supreme Court to have

22
23

established a statistical test for death-sentencing rates?
A

No.

They have not specifically held that; no.

They

24

have not specifically established any test about what they must

25

be to satisfy Furman.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 306

1601

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

But what we do know is that when they -- it was

2

15 percent that that wasn't good enough.

We know that.

But

3

there was no articulated rule based on a quantitative basis,

4

because there's no quantitative evidence before the court

5

then or now.

6

Q

Are you saying that Furman stands for the proposition

7

that if a state's death-sentencing rate is 15 percent or less

8

it's unconstitutional?

9

A

No.

I'm saying -- no, not at all.

10

Q

Okay.

11

A

I'm saying if the statute -- the statutory structure

12

does not narrow the cases, then that combination would render

13

the statute unconstitutional in my opinion.

14

Q

That combination of what and what?

15

A

Oh, if the statute does not adequately narrow --

16

because that's what the Furman statute failed to do.

17

narrow at all.

18

It did not

It made common law murder death eligible.

If under those circumstances there was insufficient

19

narrowing and the death-sentencing rate was only 15 percent,

20

that would impair the constitutionality of the statute.

21

That's my reading of Furman.

22

Q

So that 15 percent is part of the constitutional test.

23

A

I'm telling you that they have never articulated --

24

here's the point I think you want to understand is they had no

25

empirical data focused sharply on the pre-Furman period of time.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 307

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1602

They looked at a handful of different studies in

2

other jurisdictions and said that it appears to us that the

3

death-sentencing rate is in pre-Furman states -- I think they

4

mentioned New Jersey and couple of other states -- is in the

5

range of 15 to 20 percent.

6

But they had no empirical data about Georgia

7

itself.

8

Georgia that it was exactly what they perceived it to be

9

generally.

10

Q

11
12

That's why we were so pleased when we estimated in

What were the conditions precedent to death

eligibility under pre-Furman Georgia law?
A

Common law murder.

13

MR. LAURENCE:

Objection, your Honor.

14

My concern is, I thought we were focusing on the

15

study, and I want to make sure that Professor Baldus is not

16

going to be offered as some expert on constitutional law.

17

And the question he just asked was, what was the

18

conditions that were in existence in Georgia for sentencing?

19

If we want to focus on what was the influence of the study

20

I'm fine with it.

21

I want to make clear that's the focus.

THE COURT:

I'll allow the answer with the

22

understanding that I won't be listening to him as an expert on

23

the subject.

24

MR. LAURENCE:

Thank you, your Honor.

25
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 308

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

1603

BY MR. MATTHIAS:
Q

And just by way of explanation, Professor Baldus, you

3

compare the results under pre-Furman Georgia law to other times

4

in history, and you opine in your declaration on that

5

comparison.

6

A

Yes.

7

Q

Okay.

8

That's why I'm asking you about pre-Furman law.

Not because I brought it up; you did.

9
10

Am I not correct on that?

So what were the conditions precedent to death
eligibility under pre-Furman law?

11

A

Liability for common law murder.

12

Q

Or rape?

13

A

Pardon me.

14

Q

Or rape?

15

A

Rape, that's true.

That's not relevant any longer,

16

and we didn't apply that in terms of our analysis of the Georgia

17

data in this study.

18
19

Q

That has no bearing on what we did at all.

Fair enough.

Now, did Georgia distinguish between the

degrees of murder in pre-Furman --

20

A

No.

21

Q

-- in the pre-Furman era?

22

A

No.

23
24
25

It's common law.

The definition of murder

pre-Furman is strictly common law murder.
Q

And what are the conditions precedent to death

eligibility under California law since 1977?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 309

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

A

1604

Oh, murder one liability and the presence of a special

circumstance.
Q

So what are the chances of being sentenced to death in

4

California for someone who is convicted of first-degree murder

5

but no special circumstances?

6

A

None.

7

Q

And what are the chances of being sentenced to death

8

in California if you are convicted of only murder two?

9

A

None.

10

Q

And what are the chances of being sentenced to death

11

in California if you are convicted of only voluntary

12

manslaughter?

13

A

Again, none.

14

Q

What are the chances of being sentenced to death in

15

California if you are convicted of murder one and a special

16

circumstance is found true or admitted but the prosecution

17

decides not to seek death, and therefore no penalty phase is

18

held?

19
20
21

A

Oh, that would take death off the table if the

government didn't seek a penalty trial.
Q

All right.

Now, if I understand you correctly, people

22

in Georgia pre-Furman who were convicted of voluntary

23

manslaughter were not death eligible?

24

A

Yes.

25

Q

And when you determined the death-eligibility rate in
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 310

1605

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Georgia pre-Furman you did not go back and look at voluntary

2

manslaughters to examine their facts and decide that maybe those

3

should be upgraded and be classified as death eligible; correct?

4

A

5

We didn't -- let me think about the answer.
Could you state the question again?

6

Q

Sure.

When you tried to -- when you tried to

7

ascertain the death-eligibility rate of Georgia in the

8

pre-Furman era you did not go back and look at those cases which

9

had resulted in a voluntary manslaughter conviction for the

10

purpose of examining the facts and possibly upgrading it to a

11

death-eligible classification?

12
13

A

You did not do that?

Are you talking about what we did in the Georgia

research or in the California research?

14

Q

Is the answer going to be different depending on the

16

A

Yes.

17

Q

Okay.

18

A

In the California -- in our pre-Furman work in

15

--

Then explain that.

That's important.

Thanks.

19

Georgia, the only thing we looked at were offenders whose cases

20

resulted in a murder conviction.

21

which we estimated the death-sentencing rate.

22

pool.

23

That's the population among
That was our

In the current research when we are trying to assess

24

death eligibility under pre-Furman law, we look at the facts of

25

the case here for the crime that was committed here.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 311

1606

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

2

Let me just interrupt.
But you are not looking at Georgia cases all over

3

again now.

4

definition of death eligibility that was used in connection

5

with the Furman decision.

6

I was focusing on the Georgia cases and the

You didn't -- no one did.

You didn't go back to

7

look at voluntary manslaughters and say, "Ah-ha.

8

had paid better attention they would have realized this is

9

really a death-eligible crime under Georgia law pre-Furman."

10
11

If someone

You didn't do that.
A

We didn't.

But I can tell you what the Supreme Court

12

said.

13

capital crime and wasn't we are very much interested in that.

14

We are interested in whether or not death sentences are

15

routinely imposed among cases that could have resulted in a

16

capital murder conviction.

17

It said that if a case could have been charged as a

So that hypothetical is not completely irrelevant

18

to Furman.

19

Q

20

That's embodied in that decision.

Is it completely irrelevant to the 15 percent figure

that we talked about earlier?

21

A

Yes, it is that.

22

Q

It is that.

23

Okay.

Now, we've been using the term "death eligible."

24

You've use it throughout your declaration and we've also been

25

talking about it today.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 312

1607

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

At several portions -- in several points, rather, in

2

your declaration you use the term "factually death eligible,"

3

and I assume you use those interchangeably; correct?

4

When you say -- talking among ourselves when you

5

use the expression "death eligible" you mean factually death

6

eligible?

7

A

Yes.

8

Q

And that suggests to me that there's some sort of

9
10

other kind of death eligibility notion out there that you are
distinguishing it from?

11

A

No.

12

Q

No.

13

A

You want me to explain what the basis of it is?

14
15

I'll

be glad to do it.
Q

You've answered the question.

Let me -- let me --

16

you've established -- you've told me that you use them

17

interchangeably and that factually death eligible is not -- you

18

don't use that modifier to contrast it with any other notion

19

like "legally death eligible," for example?

20

A

Well, if I can explain.

21

Q

Sure.

22

A

I will tell you there are two forms of factual death

23

eligibility in our analysis.

One are the cases where the

24

offender is found guilty or pleads guilty to M1 and is found

25

guilty of or admits the presence of a special.

That is a

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 313

BALDUS - CROSS-EXAMINATION/MATTHIAS

1608

1

death-eligible case, and we call this a factual death-eligible

2

case.

3

We also considered death eligible if the facts are

4

such in the case that had it been prosecuted capitally and

5

could have resulted in a M1 conviction and a finding of a

6

special circumstance and a death sentence had been imposed,

7

would the California Supreme Court have affirmed that finding?

8
9

And if we conclude on the basis of the cases that
we've looked at under California law that that case would

10

have been sustained had it been capitally charged and

11

convicted we call that factual death eligibility too.

12
13
14
15

So there are two forms of factual death eligibility
that we are speaking to in our research.
Q

18

It's not exactly what I asked.

Let me try it this way.

16
17

I understand that.

Does the term "legally death eligible" mean
anything to you?
A

We don't use the term, "legally death eligible" as

19

such in the research.

20

what it is we are trying to accomplish in this research.

21
22

Q

It's not relevant to our understanding of

If you would please look at paragraph 59 on -- that's

on page 31 of your latest declaration.

23

A

Okay.

24

Q

And you may actually not need to find it, but I'm --

25

A

I'm sorry.

What?

Page 39?

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 314

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

Thirty-one, paragraph 59.

2

A

Oh, I'm sorry.

3

Q

Paragraph 59 on page 31.

1609

Paragraph 31?
And it's probably not

4

necessary to actually look at it, but if you are more

5

comfortable, by all means.

6

But all I'm trying to iron out here with these

7

questions is some terminology issues.

8

sure that the same term is used consistently throughout or it

9

affects my understanding and it's going to affect my

10

I just want to make

question.

11

So you use the phrase -- the following phrase

12

appears:

"Cases in which a special circumstance could have

13

been alleged" --

14

A

Could you tell me the line you are on, sir?

15

Q

Line 16 apparently.

16

A

Very well.

17

Q

It's just a phrase.

18

"Cases in which a special

circumstance could have been alleged and prosecuted."

19

A

Uh-huh.

20

Q

Now, is that synonymous with death eligible slash

21

factually death eligible?

22

A

Yes.

23

Q

Now, in your Nebraska Law Review article you also use

24

the term "potentially death eligible," and I'm wondering if in

25

your Nebraska study what you meant by potentially death eligible
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 315

1610

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

is the same as the paragraph I just had you look at, as well as

2

the phrase or the word -- the phrase "death eligible" and

3

"factually death eligible."

4

Are these all the same thing?

5

A

I'm relying on my memory of that article that I wrote

6

some time ago.

7

did not resolve in a penalty trial.

8
9

Q

We are looking at cases that

That's what I assumed, and I just wanted to confirm

it.

10
11

But basically yes.

Now, you are aware of Professor Shatz's writings in
this area; correct?

12

A

Yes.

13

Q

And you are also aware that he testified in this

14

proceeding; correct?

15

A

Yes.

16

Q

And did you read his testimony?

17

A

I did.

18

Q

Why did you do that?

19

A

Because I was advised that it would be useful to know

20
21
22

what you asked him because you might ask me similar questions.
Q

You might be surprised.
So having read his testimony, you are aware that he

23

acknowledged with considerable disappointment that courts have

24

been uniformly uninterested in death-sentencing rate evidence.

25

You are aware that he said that?

He acknowledged

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 316

1611

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

that?
A

I -- frankly, that was not this part -- I didn't read

3

it in such detail that I can remember everything that he said in

4

his testimony.

5

get the thread of what you were likely to ask me.

6

read that.

7

Q

I'll have to confess that.

I read it to mainly
That's why I

Now, can you name -- well, do you know of a court that

8

has invalidated or even considered the constitutionality of a

9

state's death penalty regime by reference to death-sentencing

10

rates?

11

A

No.

12

Q

Do you agree or disagree with the following

13

observation:

14

"In the 34 years since Furman was

15

decided the Court had made clear that its

16

decision was not based on the frequency

17

with which the death penalty was sought or

18

imposed; rather, the primary emphasis of

19

the Court's death penalty jurisprudence

20

has been the requirement that the

21

discretion exercised by juries be guided

22

so as to limit the potential for

23

arbitrariness."

24

MR. LAURENCE:

25

objection.

Same objection, your Honor.

Same

If this is going to how he formulated the study

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 317

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

that's a fine question.

2

1612

expert he agrees with that statement is irrelevant.

3

THE COURT:

4

But asking whether or not as a legal

You may answer that.

5
6
7

Okay.

THE WITNESS:

I will rule as I did previously.

I'm sorry.

Could you read it again?

BY MR. MATTHIAS:
Q

8

Sure.
"In the 34 years since Furman was

9

decided the Court has made clear that its

10

decision was not based on the frequency

11

with which the death penalty was sought or

12

imposed; rather, the primary emphasis of

13

the Court's death penalty jurisprudence

14

has been the requirement that the

15

discretion exercised by juries be guided

16

so as to limit the potential for

17

arbitrariness."

18

Do you agree or disagree with that?

19

A

Yeah, I agree with that.

20

Q

I take it, then, you also necessarily then would agree

21

that there's a qualitative as well as quantitative element to

22

this narrowing requirement?

23

A

Precisely.

24

Q

Now, I see you've taught classes on criminal law,

25

federal criminal law, capital punishment and statistical methods
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 318

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

for lawyers.

2
3

1613

When was the last time you taught substantive criminal
law as contrasted by a criminal procedure course?

4

A

A year ago.

5

Q

When was the last time you taught statistical methods?

6

A

Well, that's over a decade.

7

Q

I'm sorry?

8

A

Over a decade.

9

Q

Is that course even being offered anymore?

10

A

I'm not sure.

It was a -- I put the statistical

11

component into an employment discrimination class, and I haven't

12

taught that in 15 or 20 -- it's probably more like 15 years.

13

Q

And you've never taught criminal procedure; correct?

14

A

No.

15

Q

Have you ever taught evidence?

16

A

Yes.

17

Q

When was the last time?

18

A

Oh, 20 years ago.

19

Q

And have you ever taught ethics or professional

20

responsibility as it's called in Iowa?

21

A

No.

No.

22

Q

And have you ever taught a criminal practice course --

23

clinical trial practice, some practice court -- something along

24

those lines?

25

A

No.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 319

1614

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

A simulated trial-type work?

2

A

No, I haven't.

3

Q

Now, when did you begin this study, the study that we

4

are all talking about today?

5

A

2005.

6

Q

Who contacted you about it?

7

A

I think Michael Laurence contacted me about it is my

8

recollection.

9

Q

And --

10

A

Tim Schardl is another attorney in California.
I can't recall.

It was

11

one or the other.

I knew both of them

12

beforehand.

13

Q

S-H-A-R-D-L?

14

A

No.

15

Q

Now, you did devise a study specially for the purpose

It was one or the other who contacted me.

S-C-H-A-R-D-L.

16

of producing evidence in this case, and in Mr. Frye's case,

17

Mr. Frye being Mr. Schardl's client; correct?

18

A

Yes.

Yes.

19

Q

Who paid for the study?

20

A

To my knowledge it was paid for by Mr. Laurence's

21

office and Mr. Schardl's office.

22

knowledge.

23

They paid for it to my

I send the bills in, and they pay them.

24

providing the money I'm not exactly sure.

25

is the state.

Who is

But I assume one

The state is providing part of it, and the

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 320

1615

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

federal government is providing part of it through the

2

federal defenders in Sacramento.

3
4

Q

Okay.

But the checks come from the federal public

defender and the --

5

A

State.

6

Q

-- HCRC?

7

A

That's right.

8

Q

Now, when you were talking with HCRC about developing

9

this study, did you come to any understanding regarding your and

10

HCRC's respective areas of responsibility in connection with the

11

study; who was going to do what and who was responsible for

12

what, and who was going to stay out of the other one's way on

13

this matter or the other thing?

14

You understand the question?

15

A

16

Certainly.

Certainly.

We were going to devise the study, that is,

17

Professor Woodworth and I were going to devise the empirical

18

study that would address the extent to which this statute

19

narrowed.

20

apply in making those results about the factual presence of

21

M1 liability and the special circumstances under California

22

law.

23

And HCRC would provide the law that we were to

That was the division of responsibility.

And they

24

would ask us the questions that they wanted answers to for

25

the purposes of the litigation.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 321

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

Q

1616

So that was the division of labor that you agreed

upon?

3

A

Yeah.

4

Q

At the outset?

5

A

Yes.

6

Q

Now, in paragraph 11, which you will find on the

7

middle of page three, you say that "the research, design and

8

sample for the study were produced by Professor Woodworth,

9

Richard Newell and me."

10

Now, the sample was drawn from a database; correct?

11

A

Yes.

12

Q

And the database was in fact provided by the

13

California Department of Corrections and Rehabilitation;

14

correct?

15

A

Well, the source of information for the creation of

16

the database were probation reports which came through the

17

Department of Corrections -- came from them.

18
19
20

Q

Right.

On direct you said -- you mentioned my office,

and I just want to make -A

Well, I would be sent these probation reports.

21

didn't know who was producing them.

22

department.

23

Q

I

Right.

That was not in my

In fact, by the time you got them you were

24

getting them from HCRC.

I mean, you may not have concerned

25

yourself about where they got them from, but the last people to
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 322

1617

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

handle them before you handled them was HCRC; is that right?
A

Well, either HCRC or Tim Schardl's office in

3

Sacramento, one or the other.

4

that I'm not sure.

5
6

Q

I'm not sure.

The mechanics of

It's your understanding that the reports were actually

produced by CDCR?

7

A

Yes.

8

Q

That's all I wanted to just nail that down.

9

Now, you mentioned in your declaration of somebody

10

named Robin Glenn, who I assume is occasionally referred to as

11

Roberta Glenn.

12
13
14

Is that the same person?
A

Well, that's a typo if it says "Roberta."

She

wouldn't be happy about that.

15

No.

It's Robin Glenn.

She's a lawyer who's worked

16

on empirical studies for the last 15 years and has been very

17

important to us in managing the database and cleaning the

18

data.

19

Q

And she oversaw the data coding and cleaning process?

20

A

With me.

21

With me.

We would have -- we would be working with the

22

students.

She would be on the conference calls.

We would

23

have all the students together in a room, and she would join

24

in through the conference calls.

25

Massachusetts.

She's not a -- she lives in

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 323

1618

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

So she's been overseeing this project from afar?

2

A

To the extent that I've asked her to, yeah.

3

the project.

4

preparing the first drafts of our questions for the HCRC about

5

legal issues that were unclear.

I oversee

Then there are tasks I asked her to do, such as

6

Q

Well, is -- sorry.

7

A

I would suggest to her to draft a memo.

"Here's the

8

question we don't have an answer to.

9

And she would do that, and I'd approve it, and then we would

10

Please draft a question."

send it to HCRC.

11

Q

She was not in residence in Iowa?

12

A

I've never met her.

13
14
15

I've never seen her face-to-face.

I've worked with her for a long time.
Q

Okay.

She's fantastic.

What is your understanding of her relationship

to HCRC?

16

A

She's paid by them.

17

Q

So she's not your employee, she's --

18

A

Well, she operates under my instructions.

19

She's my

employee paid by HCRC.

20

Q

And you have no idea where she is today, do you?

21

A

She's in North Hampton, Massachusetts.

22

Q

Now, you mentioned that the coding was done by 21

23

either students or recent grads.

24
25

It's her home.

You paid them, or they did it on a volunteer basis?
A

Oh, the RAs, the research assistants were paid for by
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 324

1619

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

the University of Iowa College of Law.

The recent grads were

2

paid for by HCRC and Tim Schardl's office.

3

Q

And were they paid an hourly rate?

4

A

Yes.

5

Q

What was that rate?

6

A

Here's the way RAs are paid, students.

When they work

7

for me they get -- or not just me but any professor.

If they

8

are out of the state they get in-state tuition.

9

that they get paid pretty well when you think about the fact

So that means

10

that it's a $15,000 benefit they are getting.

But they are

11

factually paid in the way of checks only the minimum wage.

12

Whereas the recent law grads were paid the going

13

wage for new lawyers in Iowa City, which is $37 an hour.

14

That's what they were paid.

15

Q

And the weather is not so good?

16

A

Well, it depends on the time of year.

17

Q

Did you have a budget, that is, on this element alone

18
19
20
21

on just paying the coders?
A

The budget was, "Let's get the job done, and HCRC and

Tim Schardl's office will pay until it's done."
Q

Were any of the students you had working on this

22

project recent grads, or were they -- had they been enrolled in

23

your death penalty seminar class?

24
25

A

Yes.

Some of them had.

And a number of them had been

enrolled in my criminal law class, but not all of them.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 325

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

Q

1620

Why don't you take a look at footnote one on page

three where the names are listed?

3

A

Yes.

4

Q

And if you could tell me which of those students had

5

taken -- as best you can recall.

6

time -- but to the extent you do recall, how many of them were

7

enrolled in your death penalty seminar?

8
9
10
11
12

A

I realize it's been some

Well, Fangzhou Ping was, and John Magana was to the

best of my recollection, and, you know, that's the best I can
recall.
Q

I don't recall those details.
How big -- what was the enrollment in the death

penalty seminar when you taught it last?

13

A

Twenty people.

14

Q

So what they call a "paper course"?

15

A

Where you write a paper?

16

paper; yeah.

17

Q

18

There is an exam and a

Now, when you were hiring students for this project

did you have any hiring criteria?

19

A

Yes.

20

Q

What was it?

21

A

A reasonable academic record.

22

Q

Did you have a minimum GPA in mind?

23

A

No.

And a reference.

Attention to detail.

That was

24

the main thing I was interested in.

Would they be able to

25

complete the work, and would they be attentive to details so I
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 326

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1621

didn't have to double-check everything they did?

2

Q

Were there any course prerequisites?

3

A

No.

4

Because the main course, criminal law, they all

had had that.

5

Q

How about criminal procedure?

6

A

No.

7

Q

Or maybe evidence?

8

A

No.

9

Q

When did the coding process actually begin?

When did

10

the first students sit down to read a probation report and come

11

up with a classification?

12

A

In the fall of 2008 is when it began in earnest.

13

Q

And when was all the coding completed?

14

A

The end of 2009.

15

Q

Does that include the -- when -- it was the end of

16

2009, does that include the time of the cleaning process that

17

you've described in considerable detail earlier?

18

A

They were all going on simultaneously.

19

Q

When did the cleaning process begin?

20

A

Well, the cleaning process began in earnest in the

21

summer of, to wit, May '09.

22

coded by that point by any means.

23

and we were still having our students and recent law graduates

24

continuing to code and enter the data.

25

Q

And we did not have all the cases
Cases were still coming in,

Were the -- was the cleaning team of five students
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 327

1622

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

that you described earlier, are they all among the 21 whose

2

names appear in footnote one?

3

A

Yes, except one.

4

Q

And --

5

A

Well, one was -- let me think here.

6

sorry.

7

they all had done coding.

They were -- yes.

Oh, no.

I'm

They were all from this group, and

8

Q

Could you identify the five for me?

9

A

Let's see, John Magana, Fangzhou Ping, Folke Simons,

10

James Vaglio, and Kristen Stoll.

And actually, there was

11

another one, Erin Snider for a little while who also worked on

12

it.

13

Q

So it was a team of five, sometimes six?

14

A

That's right.

15

Q

Now, as you know, you've completed five declarations,

16

and Mr. Laurence asked you a little bit about that.

17

The latest one is Exhibit Number 291, the fifth, and

18

that's the one that was -- I don't know if it was signed, but it

19

was delivered to everybody here yesterday; right?

20

A

Yes.

21

Q

And the first one was done in November of 2009?

22

A

Yes.

23

Q

And trust me when I tell you it was based on a sample

24
25

of 1,618 cases drawn from a universe of 27,928.
Does that sound right?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 328

1623

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yes, it is right.

2

Q

Okay.

And in the very next declaration in paragraph

3

seven you note that the sample had actually grown at that point

4

to 1,823 but the universe was the same size.

5

constant.

6

It had remained

It was 27,928.
And that the purpose of the revised declaration,

7

according to paragraph seven, was to report additional

8

findings based on that larger sample; is that correct?

9

A

Yes.

10

Q

All right.

And there's no mention in your second

11

declaration of having verified the findings recited in the first

12

declaration, and therefore, there's also no mention of having

13

made any corrections.

14
15
16
17

This is correct, I mean -A

Okay.

Very well.

I'll accept your statement on that.

I don't recall.
Q

As I understand it, it was just a matter of the sample

18

had gotten larger, you had about 200 more cases and you had to

19

update effectively the results.

20

additional information.

21
22

I think that's what you said to Mr. Laurence, and I
believe it's what's in your declaration.

23
24
25

No corrections were made, just

It's not a trick question.

I'm just trying to make

sure I understand.
A

Very well.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 329

1624

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

All right.

2

change in language.

3

Now, the third declaration there's a

as Exhibit 214.

4

This is the declaration that's known to us

At that point the sample had grown to 1900 cases,

5

again, drawn from a universe of the same size, 27,928.

And

6

in this declaration you say that you have, quote, "verified"

7

the accuracy of your previous findings and that the new

8

declaration reports additional and corrected findings.

9

A

Yeah.

10

Q

And since you found matters that required correction,

11

I assume when you say "verified" you don't mean confirmed to be

12

correct, but rather you mean confirmed, or you ascertained

13

whether it was correct, and if it wasn't you fixed it.

14
15

Is that correct?
A

Well, I mentioned in my statement earlier to counsel

16

that we had a number of cases that were coded as close calls,

17

and because we had come to understand the system better I felt

18

we were in a position where we could go in and make some more

19

definitive judgments about those.

20

So I think there were about 90 cases where we went

21

and recoded the case from a close call to either presence or

22

absence in the case.

23
24
25

Q

I'm just focusing on your use of the word "verified."
When you say "verify" you don't mean, "I looked at

it and satisfied myself that it was correct."

You mean, "I

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 330

BALDUS - CROSS-EXAMINATION/MATTHIAS

1625

1

looked at it to see whether it was correct, and if it wasn't

2

I corrected it."

3

A

Yeah.

4

Q

That's all I was asking.

5
6

It was the latter.

THE COURT:

Excuse me, Counsel.

place to take our first recess whenever that might be.

7

MR. MATTHIAS:

8

THE COURT:

9

MR. MATTHIAS:

10
11

Find a convenient

Any time is fine with me.

Let's go five more minutes then.
Thank you, your Honor.

BY MR. MATTHIAS:
Q

Now, on your fourth declaration dated September 15th

12

and it's known to us as 216, we have the same size sample, 1900.

13

Now the universe has shrunk --

14

A

Yes.

15

Q

-- to 27,453.

16

A

Uh-huh.

17

Q

And you again state that you have verified the

18

accuracy of your previous findings, and that the fourth

19

declaration again reports additional and corrected findings.

20
21
22

My first question is, how is it that the universe got
smaller again?
A

Because when I looked at the various time periods by

23

year, the data got very thin in the last couple of years of the

24

sample.

25

representative story about those later years.

And it was my judgment that we did not have a clearly

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 331

1626

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

So I made a judgment that in terms of having a

2

fully representative sample it would be better to delete

3

those cases.

4

number of cases.

It was about -- I can't remember the exact

5

You know, these are weighted cases here.

6

only a handful of cases -- I think maybe eight or nine cases

7

or something we deleted.

8

fact that they looked too thin over this period of time.

9

It was

It was strictly on the basis of the

This has to do with the vagaries of how the

10

Department of Correction's database functions, and that's

11

understandable.

12

they wouldn't have been updating it the same way they had in

13

the earlier years -- that was my understanding -- and the

14

data seemed very thin, and it didn't seem sufficient to

15

support good inferences for the later period.

16

struck them.

17

Q

18

During the latter years of that database

That's why I

And what these cases all had in common was that they

were from a particular time period?

19

A

Yes.

That was the only thing.

20

Q

And what was that time period again?

21

A

Well, I can tell you in one second here.

22

Q

Sure.

23

A

They were dated after -- they were dated -- they were

24

dated later than June 30, 2002.

The -- originally the database

25

that we got from the Department of Corrections, it had cases up
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 332

1627

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

to 2005, you know, people that had just been admitted to the

2

prison shortly before they sent us the database, I think, and

3

those are the ones that gave me concern.

4

whatever to do with whether the case -- how it was a crime of

5

conviction.

6

this was not a rich enough set of data to include.

7

Q

They had nothing

It was strictly on the basis of my judgment that

I understand.

I just -- when I noticed that the

8

universe got smaller and there was no explanation I felt I

9

should ask, 'cause that seemed -- it seems odd.

The universe

10

was slowly but surely getting a little bit bigger each time, I

11

assume because of the inflow of probation reports from CDCR via

12

HCRC or FPD, and then all of a sudden I see a diminished-sized

13

universe, and it simply raises a question, and I asked you, and

14

you explained it, and I thank you.

15
16

Now, in your latest declaration, the one dated
yesterday -- and this is known to us as 219.

17

In paragraph seven you again state you verified the

18

accuracy of your previous findings, and that this, the fifth

19

declaration reports additional and again corrected findings.

20

A

Uh-huh.

21

Q

Now, as best you can recall, what were the errors that

22

you discovered upon your preparation of your third declaration?

23

A

I discovered one error.

24

Q

And what was that?

25

A

Do you have the tables?

The figures there?

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 333

It would

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1628

be the simplest way for me to explain it to you.

2

Q

What figures should I look at?

3

A

Two.

4

Q

What page is that on?

5

A

That's page 28.

6

Q

Okay.

I'm there.

7

A

Okay.

You'll notice that in stage three in box 3B it

8

lists 613 cases where the special circumstances was dismissed by

9

the court or rejected by a fact finder.

10

According to our controlling fact-finding rule

11

those cases are no longer death eligible.

12

do was to subtract those cases from the denominator of our

13

estimates in boxes 5A and B.

14
15
16

What I failed to

If you look at the earlier declarations, the
denominator there was the original population of 16,000 -Q

Yes.

Professor, I think you misunderstood the

17

question.

18

is evidenced for the first time in yesterday's declaration.

19

You are describing the correction that you made that

I'm asking you about the matter that got corrected

20

in this third declaration.

21

the second and the third, and that's what I'm asking you

22

about.

23
24
25

There was a correction between

I understand the final corrections that are
reflected in box 3B and 5A.
A

Oh, okay.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 334

1629

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

I asked you about Exhibit 219, which is the first

2

declaration which recites the facts of a correction but it

3

doesn't identify it.

That's why I'm asking.

4

A

I --

5

Q

Can't recall?

6

A

-- can't recall.

7
8

things.
Q

9
10
11

They would have been trivial little

That's fine.
Do you recall what corrections were made in the

fourth declaration?
A

No.

All I can tell you is this.

We were in a state

12

of constantly cleaning the data.

13

comparisons between death eligibility in Carlos Window, 2008;

14

the consistency between the death-eligibility judgments and the

15

specials that were present.

16

We are evaluating, looking at

And I spent enormous amounts of time reviewing

17

those data, and with 1900 cases things slip through, and I

18

would spot the ones that did and I would fix them.

19
20

Q

And it was not until the fifth declaration that you

spotted the box 3B, 5A error; correct?

21

A

Yes.

22

Q

So that error actually appears in three consecutive

23

declarations, each of which had data verified by you before you

24

prepared it and signed it?

25

A

That's right.

I made a mistake.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 335

BALDUS - CROSS-EXAMINATION/MATTHIAS

1630

1

Q

You are not planning a sixth declaration, are you?

2

A

Not at the moment.

3
4

MR. MATTHIAS:
Honor.

5
6

This is probably a good time, your

THE COURT:

Okay.

We will take a 20-minute recess.

The Court is adjourned.

7

(Whereupon, there was a recess in the

8

proceedings from 11:12 A.M. until 11:35 A.M.)

9
10

THE COURT:
Counsel.

11
12
13

You may proceed when you are ready,

MR. MATTHIAS:

Thank you, your Honor.

BY MR. MATTHIAS:
Q

Professor Baldus, what I'd like you to do now is talk

14

to you a little bit and ask you to describe some features of the

15

sampling process.

16
17

As I understand it you wanted a sample of a certain
size, and that was to ensure validity; correct?

18

A

Yes.

19

Q

What was your target sample size?

20

A

Originally it was about 1800.

These targets --

21

Professor Woodworth can give you a much more informed

22

information on this than I can.

23

Q

Okay.

Maybe I should defer my questioning to him.

24

A

I think that would be better.

25

Q

I appreciate that.

I appreciate that.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 336

1631

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

But you had a percentage in mind -- a certain

2

percentage, not in absolute numbers, but a sample should be a

3

percentage of the universe ideally, and I just --

4

A

I don't know if there was a percentage or the

5

number -- the raw number I think was more important.

6

But that's

really his department.

7

Q

Was he also in charge of the stratification process?

8

A

Exclusively.

9

Q

Exclusively?

10

A

Put it this way.

11
12
13

I determined what are the factors

that we should stratify on.
Q

Oh, okay.

Well, then let me ask about that.

Let's

jump right to that.

14

The first thing I understand that the idea of

15

randomly drawing a sample was rejected because it was very

16

clear that doing that would actually not result in a

17

representative sample.

18

randomness does not always ensure representativeness; is that

19

correct?

20
21

A

It seems counterintuitive, but

Again, I'd like you to put those questions to

Professor Woodworth.

22

What our concern was if we took a random sample it

23

would be dominated by Los Angeles, and that's what we didn't

24

want.

25

Q

And you wanted to ensure that you got a fair number
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 337

BALDUS - CROSS-EXAMINATION/MATTHIAS

1632

1

from elsewhere around the state just to ensure more statewide

2

representativeness?

3

A

That's right.

4

Q

And to the extent that the non-randomly drawn sample

5

into each of the 48 strata were not representative on a

6

one-to-one basis, that was compensated for by weighting the

7

cases in proportion to their membership in the universe, and

8

then you ensured that whatever the numbers were on the strata

9

they were never going to be counted more than they should be

10

worth.

11
12

Is that fair?
A

That's right.

But again, you are using terms of art

13

that I'm not really -- I don't want to be answering questions

14

based on terms of statistical art that I'm not really competent

15

to judge, but you've given a nice impressionistic view of what

16

happened and I agree with that.

17

Q

Okay.

18

A

But George can tell you precisely what these terms

19

mean -- representativeness, random -- that's not in my

20

department.

21

Q

22
23

Fair enough.

I appreciate that.

But you did decide what the stratification
should -- the lines along which stratification should occur?

24

A

Yes.

That's not a statistical question.

25

Q

Right.

That's a structural element.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 338

1633

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

That's right.

2

Q

And as I understand it it's stratified along three

3

dimensions.

4

A

Yes.

5

Q

And I don't know if this is useful to you but I think

6

it's useful to me.

7

else.

8
9

I'll ask you whether it's useful for anybody

I think of this as a three-dimensional matrix.
You've got a horizontal axis, you've got a vertical axis and

10

you've got death.

11

four deep, or is it -- it's three by four by four, and you

12

ended up with the 48 strata, which could be thought of as

13

like individual boxes.

14

You've got three across, three down and

Is that fair?

15

A

Yes.

It's stated in footnote five of my declaration.

16

Q

Okay.

And you -- and there are a different number of

17

cases in each of the different strata just because of the result

18

of the sampling process?

19

A

Yes.

20

Q

Now, let's talk about the strata.

21

of conviction.

22

One strata is crime

So across that strata you have three

compartments.

23

A

That's right.

24

Q

Voluntary manslaughter, murder two and murder one.

25

And order doesn't matter, because it's a three-dimensional
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1
2
3
4
5

matrix; right?
A

Yes.

But they were structured:

Murder one and murder

two and voluntary manslaughter.
Q

All right.

So they went this way.

It went vertically

not horizontally.

6

A

Yes.

7

Q

One of the other axes, and it doesn't matter in what

8

order, is the date.

It's a chronological element; right?

9

A

Yeah.

10

Q

You've got pre-Carlos Window.

You've got Carlos

11

Window, and then you've got post-Carlos Window, and that latter

12

category is itself subdivided into two groups, the dividing line

13

being December 31st of 1992; correct?

14

A

Correct.

15

Q

Just curious; what was the rationale of subdividing

16

the post-Carlos Window period into two of its own strata rather

17

than just regarding it as a single strata?

18

A

It was just to try to get a sample size that was big

19

enough so you could make meaningful statements about the

20

universe, if that became relevant.

21

Q

Okay.

So you could have gone out five and achieved

22

even more representativeness but you decided subdividing it into

23

two would probably be good enough, certainly better than one

24

large post-Carlos Window strata?

25

A

That first preliminary statement is again loaded with
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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2
3
4
5
6

technical terms of art.
Q

Hold that please for George Woodworth.

You know, every question I'm asking you is based on

your declaration, so those are terms of art that you have used.
A

That's correct.

specialist in that area.
Q

That's correct.

But I'm not the

Woodworth is.

Third dimension.

This has to do with population

7

density, and you've divided up the 58 counties and clumped them,

8

grouped them by population density from least dense to most

9

dense, and this became -- and that was in four units and that

10

became the third strata of four.

11

So we got three by four by four for 48.

12

A

Yes.

13

Q

And then however many of the cases were drawn from the

14

universe to become your sample they were deposited in the

15

appropriate box.

16

they were relative to the universe, and you or Professor

17

Woodworth gave it a multiplier -- could have been a multiplier

18

of more than one or less than one, but it was designed to even

19

out the non-random quality of having it been drawn that way to

20

make it as representative as possible.

21

A

22

works.

23

Q

Is it accurate?

24

A

I'd say at a very impressionistic level; yes.

25

Yes.

You then learned what -- how representative

That's an impressionistic statement of how that

George

Woodworth can give you much more detail on it if you think you
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

need.
Q

Okay.

When you decided to stratify along population

3

density as a relevant criteria, you say in your declaration that

4

that was done to ensure adequate sampling from what you call

5

smaller and more rural counties?

6

A

Yes.

7

Q

So if I understand correctly, now we've got this

8

three-dimensional matrix in mind.

Since Alpine County and San

9

Bernardino County ended up being in the same population density

10

strata, all other things being equal, for example, a Carlos

11

Window case resulting in a second-degree murder conviction out

12

of Alpine County would go into the same box as a Carlos Window

13

second-degree murder conviction out of San Bernardino County?

14

A

Your matching is on level one, 49 counties with the

15

population density of fewer than 200 people.

16

That's what we are

referring to right there in footnote three.

17

So you are saying that if we had a case from one of

18

the two of the counties in that area, and they were both from

19

the Carlos Window, and they were both from the same time

20

period, they would be in the same stratum.

21

Is that what you are suggesting?

22

Q

Yes.

23

the same area."

24

Although when not -- you used the phrase "from

meant.

25

If you meant geographically that's not what I

These are -- the commonality between Alpine and San
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 342

BALDUS - CROSS-EXAMINATION/MATTHIAS

1637

1

Bernardino according to your structure is they belong in the

2

same strata for population density purposes.

3

A

Yes.

4

Q

And that's because by your criteria Alpine County and

5
6

San Bernardino County are similarly small and rural?
A

They have -- here's this way we defined it.

7

Population density per square mile of fewer than 200 people.

8

I'm not an expert on the nature of each of these counties.

9

used that quantitative measure to define this stratification.

10

Q

We

So there was -- some equivalence was then drawn

11

between the notion of being small and rural and being not very

12

densely populated.

13

up in the same box?

14

A

That's how Alpine and San Bernardino ended

All I can say is that according to the data that we

15

consulted they each had fewer than 200 people per square mile.

16

That's the only measure we used.

17

Q

Well, the purpose, though, in stratifying along

18

population density was to create what -- to ensure adequate

19

sampling from what you call, quote, "smaller and more rural

20

counties."

21

So smaller and more rural was defined by reference

22

solely to population density.

23

correct, for labeling it as small and rural or large and

24

urban; is that right?

25

A

There's no other criteria,

That was the measure we used, and if it was imprecise
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1

that's a distinct possibility, if it wasn't as precise as one

2

would make it if you conducted a whole empirical study of the

3

rural and small counties of the state.

4

measures.

5

Q

I appreciate that.

These are rough

And Los Angeles County was placed

6

in its own strata.

It's level four.

And is that because Los

7

Angeles County is the most densely populated county in

8

California?

9

A

I don't think it is, actually.

I think there are

10

others that are slightly -- my memory is it's not the most

11

densely.

12

little bit more densely populated.

13

I think there are a couple of others that may be a

But LA stands out as such a major contributor to

14

homicide in the state, which is why we wanted to suppress its

15

role in the sample.

16

Q

So population density defined the first three of the

17

four strata, and then a different criteria was used for defining

18

the fourth strata?

19

A

Yeah, that is --

20

Q

In which case population density is no longer the

21
22

defining feature, but raw number size is?
A

Well, you know, obviously I don't recall the details

23

of that.

You may be able to tell me if I'm wrong, but having

24

read over the papers recently I was struck by the fact that Los

25

Angeles was not the most densely populated.

That's my

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 344

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

assumption.

2

Q

1639

That's my memory.

You are right.

Not even close.

And I'm asking, not arguing.

That's why I'm

3

asking.

4

defining feature is population density.

5

three strata, and all of a sudden we now single out Los Angeles

6

for some reason clearly not unrelated to population density.

7

San Francisco, for example, is three-and-a-half times more

8

dense.

9

A

Okay.

It seems to be the
That takes us through

Essentially, it's a different breed of cat,

10

let's say, LA in terms of homicide, and I didn't produce these

11

out of whole cloth.

12

was a general consensus that we should treat LA differently.

13
14
15

Q
of labor.
A

I consulted with counsel on this, and there

That's why I asked my earlier question about division
So HCRC had a hand in devising the strata?
Certainly.

These are not empirical questions.

These

16

are design questions that define what populations you want to be

17

able to make meaningful questions about.

18

Q

So HCRC decided that population density is important

19

to a point, and then the huge number of people in Los Angeles

20

alone provides an independent reason to make that its own

21

strata?

22
23
24
25

A

HCRC didn't make any decisions.

They made

recommendations to George and me.
Q

Okay.

Let's turn to the probation reports, which as I

understand it you describe as the primary source of information
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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BALDUS - CROSS-EXAMINATION/MATTHIAS

1640

1

for making your classification decisions as to whether something

2

is death eligible as you use that term or not.

3

In paragraph 15 you say that "the purpose of a

4

probation report is to justify the probation officer's

5

recommendation on the appropriateness of probation as a

6

sentencing alternative in the case."

7

Who told you that?

8
9
10

A

I looked at the recommendations that the probation

officers make.

That's the only thing they make recommendations

on in these reports.

11

Sometimes they might make a recommendation on

12

sentencing, but principally they are saying, "We don't think

13

this person should get probation because of the severity of

14

the crime."

15

where they did recommend probation.

16

Q

I can't think of more than a handful of cases

Well, that's because it would only in be in a handful

17

of cases that probation would even be -- that a murderer would

18

even be eligible for probation.

19

A

That's right.

These are very serious offenses.

20

Q

So the probation -- if you are not even eligible for

21

probation then there must be some purpose in preparing a report

22

other than to make a recommendation which would be of no moment?

23

A

24

it.

25

offender.

No.

That's the principal focus of it, as I understand

There are other purposes.

They give the background of the

They provide a lot of mitigation and the defendant's
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 346

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1

story, and then they look at the various sentencing ranges, and

2

then they gave general suggestions about --

3
4

Q

I'm just asking

you about your statement.

5
6

Professor, I know what they contain.

You stated that the purpose of the report is to
justify the probation officer's recommendation.

7

And I'm just wondering how that can be when that's

8

not even on issue in the vast majority of the cases, which is

9

why I asked you where you learned that.

10

A

I guess I should have said "a purpose," and I think

11

that's the overriding purpose, but there are lots of other

12

purposes which are served by it.

13

Q

14

Thank you.

I'll move on.

In paragraph 16 you observed that one limitation on

15

the use of probation reports for purposes of your study is

16

that they are sometimes prepared before trial.

17
18
19

Can you think of any other limitations on the use of
the probation reports in your study?
A

Yes.

Sometimes the procedural information in the case

20

of how it proceeded through the system was incomplete.

21

Sometimes the information on the nature of the offense was

22

incomplete.

23

a special circumstance was present in this case.

24
25

Q

It impaired our ability to determine whether or not

And that might be true whether it was prepared before

or after a plea or even after a trial.

There is this potential

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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BALDUS - CROSS-EXAMINATION/MATTHIAS
1

that it would not contain all of the facts and circumstances of

2

the crime?

3

A

That's right.

4

Q

Now, I understand you were in private practice in four

5

years in the '60s -- between '64 and '68.

6

A

Yes.

7

Q

And did you practice criminal law?

8

A

Just in a very minor way.

9
10
11
12

I took the rinky-dink

cases, but I didn't do any major felonies or any sort of -Q

Did you ever represent somebody for the purposes of

pleading guilty?
A

Pleading guilty.

Oh, certainly.

These were all small

13

offenses -- theft, drunk driving -- that kind of thing.

14

serious.

15

Q

16

Nothing

Well, it's small to you, big to the defendant, I

think.

17

Can you imagine yourself recommending that a client

18

plead guilty based strictly on the information in a probation

19

report?

20

A

Well, certainly.

21

Q

Really?

22

A

You are asking something -- you are talking about

23

these cases here.

I'm not an expert in defense of people that

24

are involved in homicides, but I'm telling you that I think in a

25

lot of these cases it's very clear that the defendant is liable
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1643

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1

for a very serious offense, and it might make sense for the

2

defendant to plead as many of them did.

3

Q

Now, the probation report, whatever their limitations,

4

they ended up being the sole source of coding in about

5

84 percent of the cases; is that right?

6

A

Well, let me put it this way.

They were the sole

7

source of coding except for the death cases where we would

8

consult the appellate opinion, because they had much better

9

facts in death cases.

10

And also we would consult appellate opinions when

11

the probation report made reference to the fact that there

12

had been an appellate decision in that case.

13

involve cases that were back on remand for new trial or

14

something of that sort.

15
16
17

These would

But other than those exceptions initially that was the
information that we relied on that was in the probation report.
Q

Okay.

Well, my question was what percentage -- could

18

you estimate in what percentage of the cases did you rely

19

entirely on the probation report?

20
21

I'm going to ask it again, but you said something
else that triggers a question.

22

You said in the capital cases you went and read the

23

opinion because the facts were so much more well developed

24

there.

25

By capital cases do you mean cases that resulted in
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1

death judgments?

2

A

Yes.

3

Q

Well, they are clearly death eligible.

4
5

Why did you

spend anymore than two seconds on those cases?
A

Well, I wanted to learn about the law of special

6

circumstances.

7

education process learning about what the proper predicates were

8

and how we interpret the evidence related to special

9

circumstances.

10

Q

They were very instructive.

This was part of my

I found them very instructive in that regard.

But I understand you did some independent research and

11

you read some opinions, but I'm talking about cases that were in

12

the sample.

13

If it was a death case and it was a murder one by

14

definition and it was a special circumstance and the

15

California Supreme Court affirmed it, you went and read that

16

opinion just to really make sure it was a death-eligible

17

case?

18

A

I wanted to know what the special circumstances were

19

that were found.

They very often were not reported by the

20

probation report.

That's what we wanted to get detail on.

21

factually the jury found, and that was not present in a lot of

22

the death cases that were reported in a probation report,

23

particularly those that were reported pre-trial.

24

have been no such information in the probation report.

25

Q

What

There would

Sixteen percent were on cases in which you found the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 350

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

1645

probation report not adequate; is that -A

Well, wait a minute.

Are you talking about

3

information insufficiency?

4

cause I'm not clear what your question is?

5

Q

Is that what you're speaking about,

My question was, and I'll repeat it again, in what

6

percentage of the cases did you find the probation report

7

adequate to make a coding decision?

8
9
10

A

Okay.

I will tell you.

I will give you an exact

figure on that.
Q

Let me help.

If you take a look at paragraph 18 I

11

think you speak to that point.

12

But you may speak to it

somewhere else as well.

13

A

Paragraph 18.

What lines are you referring to?

14

Q

You make reference of the 16 percent of the 1900-case

15

sample proved insufficient.

16

from that that in 84 percent it was sufficient.

17

I'm really asking -- I'm inferring

Am I right?

18

A

I'll accept that.

19

Q

Okay.

So not to beat this to death, but in 84 percent

20

of the cases you felt that the probation report alone contained

21

enough information that it became the sole source of information

22

for purposes of coding?

23

MR. LAURENCE:

Objection.

Misstates his testimony.

24

He said he also consulted opinions, and we also have some

25

additional facts that we talked about.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 351

1646

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

BY MR. MATTHIAS:

2

Q

That's where the 84, 16 percent rates --

3

A

Can you help me find in here what line are you

4

speaking to?

5
6

I haven't thought about that part of my declaration
for a bit and I'd like to refresh my memory about it.

7

Q

It's the last sentence.

8

A

In paragraph 18?

9

Q

Right.

10

"Missing procedural or substantive

11

information occurred in 16 percent of the

12

cases for which we received a probation

13

report."

14

And those are the cases in which you had to go get

15
16

more information from some other source.
My question is whether the balance, whether the

17

remaining 84 were based solely on information in the

18

probation report?

19

MR. LAURENCE:

Again, objection, your Honor.

He

20

testified he had consulted appellate decisions, and in the

21

capital cases he had the Supreme Court decision.

22
23
24
25

THE COURT:

Okay.

As long as there's a question I'll

let the professor respond.
THE WITNESS:

Well, I don't mean to be dense, but what

line of paragraph 18 are you referring to as to 16 percent?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 352

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1647

BY MR. MATTHIAS:

2

Q

It's the very last sentence.

3

A

Of paragraph 18?

4

Q

No, 16.

5

A

Oh, I beg your pardon.

6

Q

That's all right.

7
8

THE COURT:

11

I misunderstood.

Let him read that, and why don't you pose

the question again?

9
10

Sorry.

THE WITNESS:

Sixteen percent.

BY MR. MATTHIAS:
Q

Okay.

That's the percentage of cases in which you had

12

to get the things Mr. Laurence was just listing for you --

13

appellate opinions, other sources -- in 16 percent of the cases

14

you had to go beyond the probation report.

15

It seems clear to me that that almost certainly

16

means that in 84 percent of the cases you relied entirely on

17

the probation report and exclusively on the probation report,

18

but because I can't be sure of it I'm asking you.

19

A

Yeah.

That's a good estimate.

20

Q

All right.

Yes.

Thank you.

21

Now, on this point about appellate opinions and the

22

circumstances under which you would go and refer to appellate

23

decisions, you say in the last paragraph, or the last

24

sentence -- pardon me -- of paragraph 20, you say:

25

"We also consulted appellate judicial
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 353

1648

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

opinions when applicable."

2

My question is, what do those last two words mean?

3

A

That's what I stated a minute ago.

When there was a

4

death case or when there was a reference to an appellate opinion

5

in the probation report by the probation officer those are the

6

circumstances under which we would seek out an appellate

7

opinion.

8

Q

Were there any other circumstances?

9

A

Not in any kind of systematic way.

I mean, I can't

10

say that we didn't perhaps stumble on an appellate case here and

11

there that was relevant, but not in any systematic way.

12

Q

Okay.

If you -- I don't know what you have in front

13

of you, but there's an exhibit called Triple W, and it's your

14

protocol.

15

help you here.

16

You should be -- it's in a binder.

Let me try to

This is what's been -- it's Triple W, and you might

17

want to keep that handy because we will have some questions

18

on that exhibit as well as other exhibits that are close

19

neighbors to that exhibit.

20

If you would look on page 16 of the protocol.

21

are numbered in this lower right-hand corner, protocol

22

00-something.

They

And --

23

A

Oh, I see.

24

Q

Okay.

25

I'm there.

Now, it says on that page that opinions were

sought for those cases, quote, "in which the jury or the Court
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 354

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BALDUS - CROSS-EXAMINATION/MATTHIAS
1

found or rejected a special circumstance in the case."

2

This is in the second-to-last paragraph, the

3

second-to-last sentence in the second-to-last paragraph.

4
5

Now, that defines a somewhat different universe of
cases in which the appellate opinions were sought.

6

My question is, which did you do?

7

the protocol or what you just testified to?

8
9

A

What I just testified to.

What it says in

That was an aspiration that

we had at the beginning, but we simply didn't have the resources

10

to do that.

11

Q

12

Were there any other features of the protocol that

were abandoned?

13

A

Not -- no.

14

Q

Okay.

Let's talk a little bit about your -- the

15

data-collection instrument.

16

and I think I understand it.

17

Mr. Laurence covered this with you,

You have your 1900 probation reports.

You have your

18

21 students.

Somehow these were broken up into workable units

19

of work or task and a student would complete the DCI for each

20

case.

Correct so far?

21

A

Yes.

22

Q

And the purpose, of course, is what -- purpose for

23

doing all of this is what we've been talking about,

24

ascertaining death eligibility?

25

A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 355

1650

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

And Appendix E, I think you've identified, this is to

2

your declaration, Appendix E to your declaration, you've

3

identified that as a DCI as we call it?

4

A

Yes.

5

Q

Okay.

6

And you've -- a moment ago I had you look at

WWW, and that's the protocol?

7

A

Yes.

8

Q

And that's the document that's referred to in

9

paragraph 23, which -- where you use the term "protocol," and I

10

just want to make sure we are all talking about the same

11

document.

12
13

A

Now, we are talking -- paragraph 23 is the paragraph

in my declaration?

14

Q

Correct.

15

A

Okay.

16

Q

And that is the protocol as distinguished from the DCI

17
18
19
20
21
22

Very well.

or any other instrument?
A

The coding protocol was a document created by the

HCRC.
Q

That was my next question.

You didn't write the

protocol?
A

No.

I didn't write the -- I wrote the DCI.
They wrote the law.

HCRC

23

wrote the legal coding protocol.

24

wrote the law as it was to be applied, and my understanding is

25

that you have a copy of that protocol.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 356

They

1651

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

Q

I have a copy of something which I've been told is the

protocol and it's Exhibit WWW.

3

A

Yeah.

4

Q

It's a 28-page document?

5

MR. PRUDEN:

Counsel, I have a -- if you would like, I

6

can show you what the coding protocol looks like.

7

of it right here.

8

MR. MATTHIAS:

9

MR. PRUDEN:

10

Sure.

And I'm advised by counsel that this was

given to you.

11

Sure.

I have a copy

BY MR. MATTHIAS:

12
13

Q

Okay.

This is actually not what I'm asking about.

If

you would look at WWW.

14

A

Okay.

(Complies.)

15

Q

Okay.

And since we are talking about that document,

16

why don't you take a few seconds, or as long as you want, to

17

thumb through it?

18

It's 28-pages long.

It's got lots of different

19

kinds of things in it, and I'd like you to make sure that we

20

are all talking about the same document.

21
22
23
24
25

MR. LAURENCE:

Counsel, we are willing to introduce

the legal aspect of the protocol, if you want to clear this up.
MR. MATTHIAS:

I don't know what that means, "legal

aspect" of the protocol.
MR. LAURENCE:

Your Honor, Professor Baldus is

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 357

BALDUS - CROSS-EXAMINATION/MATTHIAS

1652

1

explaining that the legal part of the coding book was written by

2

the HCRC, which is absolutely correct.

3

introduce it as an exhibit in order to allow the witness to be

4

able to compare that to what he's now looking at, which is the

5

first 28 pages of the protocol.

6

MR. MATTHIAS:

Okay.

We are willing to

I asked for a copy of the

7

protocol and I was provided 28 pages.

I've also been provided

8

some other information, which was never identified to me, as

9

being a protocol.

I'm going to have to figure this out.

10

got to get into this.

11

"Here's the protocol," and he said it's one through 28.

12

I've

I have a letter from Mr. Laurence saying,

BY MR. MATTHIAS:

13

Q

So is one through 28 at least part of the protocol?

14

A

It is.

15

It's part of the general introduction that was

given to the students when they would sign on to be coders.

16

Q

Okay.

17

A

Yes.

18

Q

You did?

19

A

Yes.

20

Q

And it's that other document you thought I was talking

21

Did you write pages one through 28?

about which HCRC wrote?

22

A

Yes.

23

Q

But you regard that as part of the protocol?

24

A

That's the core of it.

25

That's the core of it.

the law that we applied.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 358

That's

1653

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

What is one through 28 if not the core?

2

What is it?

3

A

The shell?

It's the procedure that the students are to apply, how

4

to create a thumbnail sketch, when there is -- determine the

5

crime of conviction.

6

There's various steps.

Remember, you've got novices coming on board, and

7

we wanted to try and train them about what this process is

8

all about, and 128 I wrote to give them an overview as to

9

what the study was about.

10
11

I wrote this a number of years

ago.
Q

All right.

So if I understand you correctly, if I

12

want to know who wrote the protocol I'm going to have to be more

13

specific about which part of the protocol --

14

A

Yeah.

15

Q

-- one through 28 you wrote.

16

A

Yes.

17

Q

And whatever is left of it somebody else or some

18

number of other people might have written.

19

find that out.

20
21

A

I can tell you what it is.

I'm going to have to

It's the HCRC.

This

document, they wrote.

22

Q

Okay.

23

A

That was our bible to determine what the predicates

24
25

What was --

were for M1 and special circumstances.
Q

When you say "this document" you are referring to?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 359

1654

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

A

purposes of this litigation.

3
4

To -- I don't know if it has a number yet for the

MR. MATTHIAS:

I'm not sure.

Here are the three.

Your Honor, may I read this into the

record just for clarity?

5

THE COURT:

Yes.

6

MR. MATTHIAS:

Professor Baldus has handed me four

7

stapled documents.

8

Applicable Law on January 1, 2008," and that is paginated Baldus

9

0001 through Baldus 0081.

10

The first is called "Overview of the

The second element is "Overview of the Applicable Law

11

During the Carlos Window Period," and this is paginated Baldus

12

0083 through Baldus 0137.

13

Element three is a list of cases in which the lying in

14

wait special circumstance was upheld.

15

pardon me -- six-page document spanning 0333 through and

16

inclusive 0337.

17

A three-page document --

And the fourth and final element is a document

18

called "California Cases Discussing the Lying in Wait Theory

19

of First-degree Murder and or the Lying in Wait Special

20

Circumstance," and this is Baldus 0191 through Baldus 0212.

21

BY MR. MATTHIAS:

22

Q

Okay.

Do we now have the whole protocol?

23

A

Yes.

24

Q

So it's pages one through 28 and those four

25

components?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 360

BALDUS - CROSS-EXAMINATION/MATTHIAS

1655

1

A

Yes.

2

Q

And that's it?

3

A

Well, like I tell you, one of the things that we had

4

in there was the findings of liability that were reported by the

5

prison system.

6

coding we wouldn't know what the crime of conviction was from

7

the protocol.

8

from the probation reports.

9

That is, on numerous occasions when we would be

These were the pretrial probation -- sorry -Let me start that again.

Sometimes the probation report would not report

10

what the crime of conviction was because the conviction had

11

not yet been obtained in the case.

12

we applied -- we looked at and consulted the data that were

13

maintained by the Department of Corrections that did indicate

14

what the crime of conviction was, so that was a part of it as

15

well.

And in those situations

16

Q

So that would be Element Six?

17

A

Yes.

18

Q

And could you describe what that looks like in volume?

19

That when you went to that thing you got from CDCR to get that

20

kind of information you described, we are talking about a

21

physical object.

22
23

Can you describe it?
A

Sure.

It was about 20 pages, and it would list the

24

cases in our sample and the crime of conviction reported by the

25

Department of Corrections.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 361

1656

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

Was it in spreadsheet format?

2

A

No.

3

Q

That you created?

4

A

Well, it was created from the database maintained by

It was just a word document we created.

5

the Department of Corrections.

6

database.

7
8

Q

That's why I asked.

That's a massive 27,000 document

I need to know what the protocol

consisted of.

9

A

Richard Newell, my data manager, was instructed by me

10

to find out what the crime of conviction was for all of the

11

cases that -- I think it was actually in about 5800 of the cases

12

that list what the crime of conviction was, and that's what he

13

did.

14

part of the coding protocol.

He listed it, and we put it in a word document, and it was

15

Q

And it was given to all of the students?

16

A

Yes.

17

Q

Anything else?

18

A

No.

19

Q

In paragraph 23 you talk about this process, and you

20
21

testified to this as well.
When a legal issue would come up you would as you

22

put it certify the legal question to HCRC.

And I think you

23

described that what that really entailed was an exchange of

24

e-mails where you identified the question you had and awaited

25

some sort of response from HCRC to assist you out of the -Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 362

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

whatever uncertainty provoked the question in the first

2

1657

place; correct?

3

A

Yes.

4

Q

And when you say that the answers provided by HCRC

5
6

were then added to the protocol, what does that mean?
A

Those memoranda that we got were added to the protocol

7

so the students would regularly get copies of these updates so

8

they would be informed of the new understanding of the law.

9

That would be a supplement to this document of names you just

10

read off.

11

Q

So it would be yet more paperwork?

12

A

Yes.

13

Q

When you say "it would be added to the protocol," you

14

don't mean protocol 0001 through 28 were revised in light of

15

HCRC's answers; you mean that HCRC gave you additional paperwork

16

that became like appendices?

17

A

Exactly.

18

Q

So the document just kept growing?

19

A

That's right.

20
21

Exactly.

It's my understanding that you have

copies of all those.
Q

They haven't been described to me as part of the

22

protocol.

That's what I'm -- the protocol also includes the

23

e-mail exchanges, every copy of which was given to the students.

24

A

Yes.

25

Q

During the course of the coding process?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 363

BALDUS - CROSS-EXAMINATION/MATTHIAS

1658

1

A

Yes.

2

Q

So needless to say, at any given moment not all of the

3

students didn't have all of the protocol because some of

4

protocol wasn't developed until the coding process was entered

5

near completion?

6

A

Yes.

7

Q

If you would, please turn to page 14 of the protocol.

8

A

(Complies.)

9

Q

And this is the portion that you said you wrote?

10

A

Fourteen?

11

Q

Page 14 of the protocol.

12

A

Okay.

13

Q

Now, looking at that and what appears on 13, and you

14
15

0014.

Protocol 0014.

might as well look at 15.
A

Can I just clarify that what we are looking at is

16

Protocol 0013, which lists the death judgments and death row

17

population?

18

Q

19

Correct.

Correct.

And that's mostly important only

because of what appears on 0014.

20

Now, does that appear to you to be somehow

21

incomplete?

22

A

Yes.

23

Q

You wrote the protocol so you would know -- and even

24

if you didn't you would know, because it looks like it's in the

25

middle of a sentence; right?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 364

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yes.

2

Q

Can you tell me what is missing?

3

A

No.

4

Q

All right.

1659

5

Would you look at the lower right-hand

corner?

6
7

The typo of some kind, yes.

Do you see the pagination system that -- where it's
called Protocol 0001 through 28?

8

Is that something you installed or something HCRC

9

installed?

10

A

What page?

11

Q

The entire document, the pagination system I

12

understand that you wrote it.

13

was accomplished by HCRC, but only you could --

14
15
16
17

A

I'm guessing that that pagination

I think that's probably right.

I don't recall having

put in that protocol numbering system.
Q

You can't tell me what should precede page 14 to make

that a complete sentence?

18

A

No.

19

Q

And you can't tell me how many pages are missing

20

between what's labeled 13 and what's labeled 14, but obviously

21

content is missing?

22

A

It's not important.

These are just descriptive

23

statistics that really provide no information that are important

24

to the students in doing the coding.

25

background information for them to get an overview of how many

This is just a little

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 365

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1660

death sentences there are imposed in the state --

2

Q

The 28-page document you wrote is not important?

3

A

Parts of it are.

They vary.

4

information for the students.

5

Some of it is background

importance here by any means.

6

Everything is not of equal

I wrote this three years before the data collection

7

even began.

8

were doing and where we were headed.

9

were looking at here.

10
11

This was just to provide an overview of what we
This is not a bible we

The only bible was the material that

was provided by HCRC and what the law of the state was.
Q

If we could get back to this process of certifying

12

legal questions to HCRC, did you ever consider referring your

13

legal questions to some entity other than HCRC, perhaps someone

14

with less interest in the outcome of the study?

15
16
17

A

I think that was discussed at one time, but the

logistics of it overwhelmed us and we sent it to HCRC.
Q

If you would look at the protocol, and again, when I

18

say "protocol" I mean the document paginated Protocol

19

00-something --

20

A

Okay.

21

Q

-- also known as Triple W, if you would look at page

22

23 of that document, in the last paragraph you describe the

23

purpose of the thumbnail sketches.

24

A

Uh-huh.

25

Q

And you say, "The thumbnail provides an overview."
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 366

1661

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Next sentence, "It's used by the investigators to identify."

2

Third sentence, "It also provides certain things."

Next

3

sentence, "Thumbnails are our window on the world.

They may be

4

the only raw material from this study that the court will see."

5

Backing up two sentences where you describe:

6

"It also provides us with the

7

capacity to develop legal and factual

8

issues for which we can attain advice from

9

counsel and a special advisory panel in

10

California."

11

I take it that that special advisory panel was also

12

aspirational, and, in fact, no such entity was ever impaneled,

13

nor were any questions ever referred to it?

14

A

That's right.

The magnitude of the project

15

overwhelmed us, and that was one thing that would have been nice

16

to have but we didn't have it.

17

That's true.

This was written five years ago, and

18

that was an aspiration that we had just like we were going to

19

consult all the judicial opinions of every case where a

20

special was found.

21

do, and this was one of the things that we scrapped.

22
23
24
25

Q

There was just a limit to what we could

I appreciate the limitations.
You predicted that the court might never see the

probation reports but might see the thumbnails.
I'm just kind of curious on what basis you made
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 367

1662

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

that prediction to the students?
A

On the basis that I thought that those thumbnails

3

would be an authoritative record of the facts of the case and

4

the classifications.

5

It turned out they were not authoritative.

There

6

were too many problems with them.

7

this cleaning process over the summer of 2009 to review all

8

of those and modify them and clean them so that we would have

9

a factual document that listed what we considered the correct

10
11

And that's why I developed

coding of the case.
Q

And when you described that cleaning process with the

12

five students, did I understand you to say you went over all

13

1900 cases?

14

A

Yes.

15

Q

And you developed for each one a narrative summary?

16

A

No.

17

I didn't develop.

The students developed the

narrative, and then I would sign off on it.

18

Q

The people involved with the project created a

19

narrative?

20

A

That's right.

And a narrative based in part on the

21

thumbnail that we corrected to overcome any errors that we saw

22

in the thumbnails.

23

Q

For all 1900 cases?

24

A

Yes.

25

MR. MATTHIAS:

Your Honor, this is exactly the kind of

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 368

1663

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

material that I asked for, and I was given 1900 thumbnails.

2

realize now the thumbnails were at best early drafts of final

3

coding narratives.

4

about this cleaning process until this morning.

5

about these narrative summaries, which appear from Professor

6

Baldus's discussion to supersede and at least in part correct

7

the discovery that I had been provided.

It was never provided, because I never heard

8

THE WITNESS:

9

THE COURT:

10

I

I never heard

May I speak to that comment?

Do.

THE WITNESS:

You had a listing of our classification

11

of death eligibility and the presence of the special

12

circumstances that exist in each case.

13

BY MR. MATTHIAS:

14

Q

You are every referring to the spreadsheet?

15

A

Yes.

16

Q

Okay.

17

Well, since you've obviously had a discussion

about what I've been given let me ask you this.

18

You know I have not been given the narrative

19

summaries you referred to as being generated during the

20

cleaning process; correct?

21

A

Correct.

22

Q

You know that because you've been told that --

23

A

Yes.

24

Q

-- by Mr. Laurence?

25

A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 369

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

MR. MATTHIAS:

Your Honor, I can't understand why I

wasn't given that information.

3

MR. LAURENCE:

1664

I'm just utterly baffled by it.

Your Honor, Mr. Matthias asked for the

4

thumbnails.

I made very clear to him in several conversations

5

and in letters that the thumbnails were not the final arbiter of

6

what was going to be death eligible, that Professor Baldus was

7

using the probation report as the final decision-making

8

document.

9

He never asked for any additional information, and

10

I certainly provided thousands of pages without any requests

11

for discovery motion whatsoever.

12

And your Honor, you can look over here and see the

13

amount of information that we've given over in discovery,

14

'cause it's sitting right here.

15

MR. MATTHIAS:

Your Honor, I couldn't possibly ask for

16

the superceding narratives generated during a cleaning process

17

because that cleaning process had never been described to me,

18

and Mr. Laurence must have known that if I was asking for the

19

thumbnails, which are described in considerable detail in the

20

declaration that I would be entitled to documents that would be

21

corrective thereof.

22
23
24
25

THE COURT:

I just don't understand this.
I'm curious.

If you gave him more than he

asked for voluntarily, why didn't you give him these -MR. LAURENCE:

I actually never had the narratives.

never thought them to be important.

And we did not, in fact,

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 370

I

BALDUS - CROSS-EXAMINATION/MATTHIAS

1665

1

obtain the narratives until 2010.

2

think we reviewed the narratives other than to create some types

3

of information to be able to have Professor Baldus testify about

4

individual cases.

5

And, in fact, I don't even

They were never to me that important, given that

6

Professor Baldus was using the probation report as the

7

primary source of information for coding.

8
9
10

MR. MATTHIAS:
up at another time.

Your Honor, I think we should take this

It's obviously going to impede the

examination some, but I'll muddle through.

11

THE COURT:

Okay.

12

and decide what we can do.

13

Let's take it up at another time

BY MR. MATTHIAS:

14
15
16

Q

Okay.

Proceed.

Professor Baldus, which are more important, the

thumbnails or the narratives that supersede them?
A

The narrative is a more accurate statement, a more

17

accurate summary of the facts.

18

are the probation reports.

19

created.

20

the decision.

21
22
23

Q

But the basis of our decisions

They are not the narratives that we

They reflect the decision.

I understand.

They aren't the basis of

Did you read all 1900 probation

reports?
A

I didn't read all of them.

I read a probation report

24

when I saw that there might be an issue based upon what was in

25

the thumbnail and what was in the narrative that was created
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 371

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1666

during the cleaning process.

2

I mean, there are many cases that involve

3

first-degree murder -- sorry -- involve 17(a) armed robbery,

4

special circumstance.

5

me to read the probation report for all of those cases.

6

I didn't think it was imperative for

But for the torture cases and the lying-in-wait cases

7

I read most of those cases unless it was really clear those were

8

slam-dunk lying-in-wait or torture cases.

9

Q

Could you estimate how many of the 1900 probation

10

reports you personally read in connection with making the final

11

coding decision?

12
13
14
15
16

A

Yeah.

I would say I read three quarters of them, ones

that were deemed to be death eligible.
Q

Three quarters of those that were deemed death

eligible?
A

Yes.

And I didn't read them all in incredible detail.

17

Very often I would just consult them to make sure that the

18

convictions were right and that the core facts were correct.

19
20

Q

Now, remind me again how many of the 1900 were death

eligible?

21

A

I think it was 1240.

22

Q

So it's 75 percent of 1240?

23

A

And I read a fair number of those that were deemed not

24

to be death eligible, too.

25

We wanted to make sure that those

were correct.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 372

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1667

So when the students would raise issues about the

2

individual cases I would check those.

3

process.

4

Q

It's an ongoing

Was there anything else provided to the students other

5

than Protocol One through 28, the four documents that I read

6

into the record, the material that you described as being

7

distilled from some CDCR records and the e-mail exchanges

8

between yourself and HCRC?

9

A

Yeah.

There was one other document that was part of

10

this that was created by HCRC that compared for each special

11

circumstance how the law has changed between 2000 -- sorry --

12

between Carlos Window and 2008.

13

document that the students had.

That was one additional

14

Q

Did that document have a title?

15

A

Differences between the Carlos Window and 2008 law was

16

an attempt to just try and sharpen the differences in these

17

documents listing the law of the two periods.

18
19

Q

In terms of format and content it was much like the

four elements that we went through together?

20

A

Yes.

21

Q

So it's just another one of those?

22

A

Yeah.

It was about 10 pages, I would say.

23

Q

Okay.

If you -- if you could rewrite this protocol

24
25

all over again would you change some things?
A

Well, I would change the things you've mentioned that
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 373

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1668

didn't come to pass.

2

Q

How about some things I didn't mention?

3

A

I don't think so.

4

Q

Have you ever heard of something called "observer

5

bias"?

6

A

7

Does that term mean anything?
I don't know the literature on that.
If that means people are biased in their perception

8

of things, then I understand that.

9

meaning of that word.

10

Q

I only know a commonsense

That doesn't mean anything to you specifically in the

11

context of setting up a study and having people responsible for

12

accurately recording events for purposes of the study?

13

A

It's a term of art of which I'm not familiar.

I can

14

grasp the -- if it means that people bring biases to their work

15

and they might influence how they code in this case, if that's

16

what it refers to but you're using a term of art that I'm not

17

familiar with.

18
19

Q

Well, that -- you know that it's a term of art, so I'm

just asking if you've heard of it before.

20

A

I can't remember.

21

Q

Okay.

22

Well, whether you heard of that by that label

or not, you are certainly familiar with the notion --

23

A

Sure.

24

Q

-- that people who are responsible for doing work

25

accurately might for any number of reasons by tempted to not do
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 374

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1669

it accurately?

2

A

Well, whether consciously or unconsciously is where I

3

draw that distinction.

4

it's useful to draw a distinction between consciously doing

5

something and unconsciously doing it.

6

Q

I mean, bias -- well, it seems to me

Well, it might be if you want to remedy it or prevent

7

it.

But I just asked you if you are familiar with the notion

8

that people who are asked to do things accurately might for any

9

number of reasons not do it accurately.

10

A

Yes, it's possible.

11

Q

And one reason might be a bias.

12

A

Yes.

13

Q

A bias that someone might intentionally act upon or

14

something that they might subconsciously act upon.

15

A

Yes.

16

Q

Now, did you undertake any measures to ensure that

17
18

that did not happen in this case?
A

Our measures were constantly reviewing the coding and

19

the narrative summaries and the probation reports to see if they

20

supported the bottom-line findings in the report that you

21

have -- the spreadsheet that you have.

22

correct that.

23
24
25

Q

That's how we tried to

Do you think you enhanced the reliability of the study

by telling your students what you hoped the study would prove?
A

I didn't tell them what I hoped the study would prove.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 375

1670

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

Q

Do you think you enhanced the reliability of the study

by identifying who you hoped might benefit by the study?
A

No.

I told them, "Look, we are working on behalf of a

4

client, but that should have nothing to do with the way you

5

approach these issues.

6

investigators and expect you to operate in the same way that

7

Professor Woodworth and I have for many years.

8

facts and that's what we go buy."

9

many, many times.

We are intellectually honest

We look at the

I told the students that

10

Q

If you would turn to the Protocol, page 15.

11

A

(Complies.)

12

Q

0015 correct.

13

A

Uh-huh.

14

Q

If you would count down -- I'm in subdivision A, one,

Very well.

That's Protocol 015?

15

two, three, four, five, six paragraphs, which would be the

16

second-to-the-last paragraph, you describe the plans for the

17

study.

18

A

Uh-huh.

19

Q

And you say:

20

"It is currently planned to use the

21

results of this study to support the legal

22

claims of two death row inmates."

23

Now, you wrote this before the study even began?

24

A

Yes.

25

Q

Do you think inclusion of that kind of information
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 376

1671

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

enhanced the reliability of the study, undermined it, or had no

2

effect whatsoever?

3

A

It had no effect whatsoever.

4

Q

Why did you mention it?

5

A

I wanted them to know what we were doing.

It just

6

wasn't going to be used as a Law Review article, that this was

7

going to be something that was presented to a court, and that I

8

expected them to take it very seriously in terms of what they

9

did.

10

And I admonished them time and time again that this

11

is serious business which we're involved in, and we have to

12

do it as accurately as we can.

13

Q

Did the thought cross your mind that when the study

14

was all said and done it actually might undermine the legal

15

claims of the two California death row inmates who were

16

sentenced to death during the Carlos Window?

17

A

Very much a possible.

Very much possible.

18

We had no idea what we were going to find, and when

19

we started this I didn't have complete control over the legal

20

theory that has emerged in this case.

21

what was needed, what would be -- what would occur.

22

a total unknown.

23

I was unclear about
This was

It all seems very clear now that it's all been

24

done, but at the outset, Counselor, you have no idea as an

25

investigator what you are going to find and what the students
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 377

1672

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

would understand and how they might react.
Q

The purpose of this study in short was to ascertain

death eligibility in California, come up with a number; correct?

4

A

Yes.

5

Q

Do you think you enhanced the reliability of the study

6

by telling the students that Professor Shatz had already

7

explored that question and come up with 87 percent?

8

You will find that on page 12.

9

A

Protocol 0012.

I tell you, the students didn't understand the legal

10

theory.

11

are students that come in and are given a job to code.

12
13
14

They didn't understand Professor Shatz' article.

They

The idea that this somehow or other was biasing
whatever they were doing to me is a stretch in the extreme.
Q

I'm just asking you whether you thought that inclusion

15

of this kind of information tended toward enhancing the

16

reliability, telling them that Professor Shatz had already found

17

87 percent, dropping a footnote to the NYU Law Review coupled

18

with your other passage that you hoped their study would support

19

their claim rather than simply illuminate it one way or the

20

other.

21

A

These are the features I am asking you about.
It had no effect whatever.

You asked me what effect

22

it had?

23

students wouldn't even understand what this is all about.

24
25

Q

I'm telling you it had no effect whatever.

The

Actually, what I asked you was when you put it in did

you think it would tend toward enhancing the study?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 378

1673

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

It would enhance the students' understanding of what

2

we were doing and the fact that other people had investigated

3

this.

4

It would make what they were doing more relevant.

Q

Let me ask you now about the coding process itself and

5

the criteria and the role of what you call controlling findings

6

of fact.

7

A

Yes.

8

Q

And when they operated, when they didn't and whether

9

there were ever any exceptions to them.

10

And this is all set forth, and you described it a

11

little bit this morning, too, so I think I can do this pretty

12

quickly but I do want to make sure that I understand it.

13

The first thing you did was you looked at the crime of

14

conviction, and if the defendant pleaded guilty to murder one

15

that case got automatically coded as a murder one case.

16

A

Yes.

17

Q

And if the defendant admitted a special circumstance,

18

then it was also automatically coded as a special circumstance

19

kind of case?

20

A

Yes.

21

Q

So there was -- in -- well, put it this way.

22

couldn't get downgraded.

23

to look at it and say, "What?

24

It

never even death eligible in the first place."

25

The student didn't have the discretion
Are you kidding?

This guy was

That's how the CFF worked in this context.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 379

Pleas

BALDUS - CROSS-EXAMINATION/MATTHIAS

1674

1

or convictions for murder one and admissions or truth

2

findings with respect to specials became conclusively and

3

irreversibly authoritative for purposes of your coding?

4

A

Yes.

5

Q

Now, if there had been a trial and the defendant was

6

convicted of murder one, same thing automatically murder one.

7

Likewise, if there had been had been a special circumstance

8

charged and it was found true and/or the defendant admitted it

9

that was conclusive --

10

A

Yes.

11

Q

-- on its classification as a death eligible.

12
13

And again, no opportunity for that to be downgraded in
the students' discretion.

14

A

Correct.

15

Q

But if the case went to trial and the verdict came

16

back less than murder one, the case might still get coded murder

17

one if your coder was convinced that the jury or even the court

18

had engaged in nullification; correct?

19

A

Yes.

If it was charged as murder or first-degree

20

murder and it came back with an M2 second-degree murder or

21

voluntary manslaughter case, that would be a controlling finding

22

of fact that would limit the judgment of the students to treat

23

that as death eligible unless the exception of jury

24

nullification existed.

25

Q

Okay.

So cases that came back either by plea or by

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 380

1675

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

trial as less than murder one, there was a mechanism for them to

2

become murder one under your protocol?

3

A

Yes.

4

Q

And that was in the case of a trial because the coder

5

determined that the jury had engaged in nullification, and in

6

the case of a plea because the plea is actually meaningless in

7

your study, there's no -- no significance is ascribed to a plea

8

at all, is it?

9

A

No.

10

Q

Except if it's murder one.

Except if it's murder one.

11

But if it's less than murder one it's meaningless.

12

you go to the probation report to see if it might be more than

13

murder one.

14

A

Factually it might be more than murder one, yes.

15

Q

And so if a special had been charged but was found not

16

That's when

true, your coder could still code it as a special --

17

A

If there was jury nullification.

18

Q

-- if there was an instance of jury nullification?

19

A

Uh-huh.

20

Q

Now let's talk about the group of cases that were

21
22

disposed of without trial.
Those cases which -- well, actually -- well, let's

23

talk about those that were disposed by plea alone in a way that

24

made them not death eligible as a matter of law; in other words,

25

M1 without specials, M2, or voluntary manslaughter.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 381

Let's just

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1676

talk about that unit.

2

A

I have to clarify what you are asking me here.

3

Q

I'm just identifying the sub-universe of cases I'm

4

going to be asking you about.

5

A

Could you classify them again?

6

Q

Sure.

Cases disposed of by plea and resulting in

7

voluntary manslaughter convictions, M2 convictions and M1

8

convictions without specials, either because none was ever

9

charged or if it was once charged it was dismissed in a plea

10

bargain or otherwise.

That's the universe.

11

A

Very well.

12

Q

Now, in all of those cases because they were disposed

13

of by plea, the fact that they were actually not death eligible

14

as a matter of law in reality counted for nothing.

15
16

A
case.

Counted for nothing.

We looked at the facts of the

Those plea agreements were relevant.

17

Q

The plea -- the plea counted for nothing.

18

A

That's right.

19

Q

So in all of those cases the students were free to

20

reevaluate the case in light of the probation report, and if the

21

probation report mentioned what they regarded as legally

22

sufficient evidence to support murder one and a special

23

circumstance it got coded as an M1 special circumstance, i.e.

24

death-eligible case?

25

A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 382

1677

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

And for purposes of the coding process the students

2

necessarily assumed something contrary to fact.

3

death-eligible verdict sampling process, a murder one with

4

special circumstances.

5

They assumed it to have been the subject of a challenge in a

6

non-existent appeal to a non-existent appellate court.

7

evaluated under the sufficiency -- the legal sufficiency test

8

whether it was death eligible.

9

A

They assumed a

They assumed it to have been found.

They didn't make any assumptions.

And they

They made a

10

judgment.

11

circumstance would it have been affirmed by the California

12

Supreme Court?

13
14

If this case had been convicted of M1 with a special

That's the empirical question that they asked.
Q

That's what I meant by "assumption."

They indulged a

15

hypothesis that defendant had been convicted of something other

16

than what he was really convicted of, and that there was an

17

appeal to a court who evaluated the sufficiency of the evidence

18

for a conviction that never occurred.

19

A

20

assumption.

21

the students looked at to determine that each case that didn't

22

have a controlling fact finding was determined to be death

23

eligible, could be sustained by virtue of some comparable case

24

in the California Supreme Court.

25

Q

That's right.

I call that a judgment, not an

And it's based on other appellate authority that

Now, in the real word of criminal litigation what is
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 383

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

1678

the sufficiency -- the legal sufficiency test used for?
A

It's used -- a test used by appellate courts to

3

evaluate claims of defendants who have been convicted that there

4

was insufficient evidence in the case to support a conviction.

5

That's what the legal sufficiency test is as used in appellate

6

courts by my understanding.

7
8
9

Q

Okay.

Now, when a court performs that analysis, what

body of evidence do they consider?
A

They generally consider the incriminating evidence,

10

and they generally paid little or no attention to exculpatory

11

evidence offered by the defendant.

12

It's very rarely sustained.

It's a very rarely

13

sustained claim in information insufficiency, not only here

14

in California but everywhere in the United States.

15

Q

Do they look at probation reports?

16

A

No, they don't.

17

the record.

18

Q

Well, that assumes that there's a trial.

19

A

Yeah.

20

They look at evidence in the case in

But those claims would never be raised in a

plea.

21

Q

Exactly.

22

A

So there would always be a trial.

23

Q

But you undertook, or your students undertook to look

24

for sufficient evidence in plenty of plea cases, and you didn't

25

have the benefit of a record, and you didn't have the benefit of
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 384

BALDUS - CROSS-EXAMINATION/MATTHIAS

1679

1

arguments from counsel urging the proposition that the evidence

2

is insufficient or contrary arguments urging the contrary, that

3

it is sufficient.

4

reports without argument.

5

process.

This was done without a record, probation

6

A

That's correct.

7

Q

All right.

That's -- I'm just describing the

And, of course, when a court undertakes to

8

do substantial evidence analysis, the question before the Court

9

is the substantial evidence to support a particular conviction,

10

and that's the conviction that actually attained.

Courts don't

11

ever undertake to evaluate a record for legally sufficient

12

evidence to support something other than what the defendant was

13

actually convicted of.

14

A

I agree with that.

15

Q

And that's largely because records typically wouldn't

16

illuminate the sufficiency of the evidence in support of a crime

17

that wasn't at issue in the proceeding; correct?

18

A

19

convictions.

20

in terms of legal sufficiency is when a conviction occurred and

21

whether it was good or not.

22

would be no basis for conducting a legal sufficiency analysis in

23

the Court.

24

Q

25

Well, the appellate courts only approve -- review
So that's the only question that they would have

Right.

If there is no conviction there

It would be impossible and at least silly to

look for sufficient evidence to support a conviction that was
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 385

1680

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

never obtained.

2

A

That's right.

3

Q

Now, when a court does that, that process of applying

4

the sufficiency of evidence test, did I understand you to say

5

that it does not look at the whole record?

6

portions of the record that the defendant was responsible for

7

tendering, or it ignores those portions of the evidence that

8

that defendant provided?

9

A

If it's exculpatory.

10

lot of weight on it.

11

very little weight to it.

12

It ignores those

If it's inculpatory they place a

statements of the defendant.

13
14

Q

If it's exculpatory they don't pay any or
We disregard the exculpatory

We will come back to that inculpatory, exculpatory

dichotomy in a minute.

15

Let me ask you this.

When you designed the study

16

you were aware that narrowing challenges had previously been

17

brought against the California death penalty statute;

18

correct?

19
20

A

Only in the most general way.

I had not read

Professor Shatz' work at that time at all.

21

Q

I was asking about legal charges, not scholarly --

22

A

Oh, I really was unaware of those cases.

I didn't --

23

I didn't -- counsel didn't bring them to my attention, and I

24

never went out and found them.

25

slate.

We were starting on a clean

Perhaps we should have, but we didn't.

I didn't.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 386

1681

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

Well, did it occur to you that may another inmate,

2

someone quite simply situated to Mr. Ashmus, might have hired

3

his own version of Professor Baldus to do a Baldus-like study of

4

California and had a hearing just like this one maybe nine years

5

ago or something.

6

A

Well, I knew that hadn't occurred.

I knew that the

7

claims had been raised based on Professor Shatz's testimony,

8

that was the extent of what I understood it had done in the

9

past.

10

Q

And you were aware of the outcome of that litigation?

11

A

Yeah.

I was aware that they were unsuccessful.

12

That's why we were engaged to try and support this litigation

13

because those other claims had been unsuccessful.

14

But the details of Professor Shatz's work and the

15

analysis of those opinions was something that I did not

16

investigate.

17

Q

But you did know the outcome?

18

A

Yes.

19

Q

And you knew that it was unfavorable --

20

A

Yes.

21

Q

-- to the inmate?

22

A

Yes.

23

Q

And you were aware of the scope of his study and his

Yes.

I did know that.

24

sampling technique and his death eligibility definition and his

25

method?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 387

1682

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

No, not completely.

2

Q

Were you at all familiar with them?

3

A

Vaguely.

Vaguely.

4

We were going to go in and apply the methodology

5

that we thought was best, and my understanding was that he

6

had a narrower sample.

7

was using to evaluate the sufficiency of evidence.

8
9

I didn't know what kind of test he

I frankly didn't understand fully what he had done,
and it wasn't really all that important to us.

We knew what

10

had been done in the past and what we thought should be done

11

in this case.

12

Q

Well, weren't you concerned about not replicating

13

whatever deficiencies proved fatal to the earlier challenges

14

that rested on Shatz's study?

15
16
17

A

I didn't focus on them specifically.

Counsel probably

knew what they were, but I didn't.
Q

Well, you knew that a challenge had been made that

18

rested on empirical evidence that was derived from the Shatz

19

research.

20

A

It was based on empirical evidence consisting of

21

reading appellate opinions.

We didn't consider that a very

22

authoritative database to conduct this or any other kind of

23

litigation.

24

Q

Because probation reports are better.

25

A

Well, you get a bigger sample.

The Shatz study was

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 388

1683

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

limited to appellate opinions where there was information.

2

didn't have information on voluntary manslaughter and murder two

3

cases like we did.

4

He

He didn't have a statewide.

We were advised that counsel wanted to do a study that

5

was statewide that covered voluntary manslaughter, M1, and

6

that's what we went along to design.

7

proceeded was not really all that important to us in terms of

8

what we were doing.

How Professor Shatz had

9

Q

And "us" you mean --

10

A

George Woodworth and me.

11

Q

Okay.

12

A

I don't know whether it was important to them.

How about HCRC?

Was it important to them?

13

the way these things work.

14

want you to do.

15

cases, and here are the questions we want you to answer.

16

Here's

it from there."

17

They come and say, "Here's what we

We want you to study a sample of these 27,000
Take

And then we would take it and design the study, and

18

then we would find that we'd need guidance on the law.

19

needed guidance on stratification.

20

the lawyers and the people who understood the system far

21

better than we did, and we would consult them on these

22

matters.

23

We

We needed guidance from

But other than that, the constructing the design of

24

the study was done on the basis of the judgments that

25

Professor Woodworth and I made about what would produce a
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 389

1684

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

reliable study.

2
3

Q

And the idea of doing a study that could be

distinguished from the Shatz study was never discussed?

4

A

Well, it was distinguished because it was a bigger

5

sample.

It had -- it had a bigger sample.

6

the same thing.

It had more cases --

Yeah, it was a more extensive study.

7

Q

And you hoped for a different outcome?

8

A

I didn't hope for any outcome.

9

Q

Now, some -- does the as applied facial distinction

10

mean anything to you in the context of this study, or this

11

challenge that you attempted to develop this study for?

12

A

Yeah.

Yes.

13

Q

And what is that distinction, if you could?

14

A

Well, I'd say in terms of this narrowing distinction

15

that if you look at this California statute on its face, you

16

can't tell the extent to which it narrows at all.

17

you can tell the extent to which it narrows is by looking at the

18

cases that have been processed through the system.

19

Q

The only way

We are into terms of art here, but fortunately for

20

both of us it's a term of legal art, not a term of statistical

21

art.

22

is one that rests entirely upon how a statute reads?

So if I understand what you are saying a facial challenge

23

A

Yes.

24

Q

And an as applied challenge somehow does more or

25

something different.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 390

1685

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

And what is that more or different?

What might

that be in this context?
A

Oh, in this context it would be, if you look at 27,000

4

cases how many of them would be death eligible under those

5

statutes?

6

Q

That's an applied approach.
Do you think one of the earlier challenges that had

7

proved unsuccessful but rested on Professor Shatz's research,

8

was that a facial or an as applied challenge?

9

A

I tell you, I can't give you a detailed analysis of

10

Professor Shatz's work or the cases in which he introduced it.

11

I was not involved in that litigation and I have not studied it

12

carefully.

13

Q

But wouldn't the fact under my hypothesis that a

14

challenge rested on his research, wouldn't that make it

15

definitionally as applied?

16

A

Oh, I agree with that.

It would be applied.

To the

17

extent that he was making the same kind of arguments that are

18

being made here, that you have to actually look at the cases and

19

find out how many of them are death eligible, his methodology

20

and ours would both be applied; yes.

21
22

Q

In the real world when the death penalty statute is

applied, who is the first person to do the application?

23

A

The prosecutor.

24

Q

In your study and as applied study, as I understand

25

it, or a study in support of an as applied challenge, the death
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 391

1686

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

penalty of California is really being applied by your coders.

2

That's where the application is occurring.

3

A

Well, you know, you can talk about the application of

4

the statute by looking at the actors who administer it.

5

also look at a statute and determine the extent to which it --

6

the cases to which it applies.

7
8
9

So in that regard our judgments, and to the extent
that you say they were made by students, initially that's true.
Q

10
11

All right.
THE COURT:

Excuse me, Professor.

MR. MATTHIAS:

13

THE COURT:

14

MR. MATTHIAS:

Okay.

In six minutes?

Yes.
Okay.

Thank you.

I don't want to

waste time figuring out when is a good time to break.

16
17

Let's plan to have

a lunch recess about one o'clock, Counsel.

12

15

You can

THE COURT:

If you need a little bit more time than

that, fine.

18

MR. MATTHIAS:

Okay.

I'll be mindful of it, but I'm

19

likely to forget, and I apologize in advance.

20

BY MR. MATTHIAS:

21

Q

22

declaration.

23

A

(Complies.)

24

Q

And I'll give you a second to read the whole paragraph

25

If you would, please, look at paragraph 26 of your

because it's the subject of what I'm going to ask you about.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 392

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

1687

And then I'll make that the last

MR. MATTHIAS:
question, your Honor.

3

THE COURT:

Okay.

4

THE WITNESS:

I think I understand the distinction

5

that's being drawn here.

6

BY MR. MATTHIAS:

7
8

Q

Okay.

Well, what I would like you to focus on is this

sentence where you say:

9

"In this research prosecutors are not

10

viewed as controlling fact finders in the

11

same way as jurors and judges in trials."

12

In fact, prosecutors aren't viewed as controlling

13

fact finders in any respect in your study, not just they are

14

not on par with juries and courts.

15
16
17
18

The charging decision is completely irrelevant to
your study, isn't it?
A

Only to the extent that it informs the cases that

finally advance later in the system.

19

Q

Well, it certainly sets up certain parameters.

20

A

That's right.

21

Q

You can't be charged of more -- you can't be convicted

22
23

of more than you are charged with?
A

It's relevant in terms of death eligibility because

24

for the cases that were charged capitally and a special was

25

found the prosecutors played a key role in that obviously.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 393

But

1688

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

they are making recommendations.

2

that context.

3

Q

They aren't decisions even in

Well, you would agree that the role of prosecutorial

4

discretion is irrelevant to your study.

5

your study.

6

A

It does not figure in

I'll just state again, to the extent that those

7

decisions advance cases in the process and we are studying the

8

movement of cases through the process those decisions do have an

9

effect in terms of the charging and sentencing outcomes.

10

Q

Well, just to give a hypothetical, in a case where a

11

prosecutor only charges murder two or charges only voluntary

12

manslaughter, those cases still have a very fighting chance to

13

end up as death eligible according to Dave Baldus; right?

14

A

15
16

Yes.
MR. MATTHIAS:

Thank you, your Honor.

I think this is

probably a good time.

17

THE COURT:

Thank you, Counsel.

18

Let me inquire of both sides, how are we in terms

19

of our schedule and how are we going?

20

whether we take a one-hour lunch or more.

21

MR. MATTHIAS:

That will determine

It's a little difficult to say.

First,

22

the good news.

When Professor Woodworth gets on the stand,

23

lickety split.

I think maybe 15, 20 minutes, something like

24

that.

25

cross of Professor Baldus.

I think I'm probably somewhere about half way with my

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 394

1689

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

THE COURT:

2

MR. MATTHIAS:

3

THE COURT:

4

Okay.
I'll do my best to pick up the pace.

Yeah, yeah.

I don't want to change

anything you are planning to do or need to do.

5

So half way, we've had roughly two-and-a-half --

6

two hours and 20 minutes of cross so far.

7

another two-and-a-half hours?

8

MR. MATTHIAS:

9

THE COURT:

I'm afraid so.

Okay.

10

MR. MATTHIAS:

11

THE COURT:

So it would be

I'm afraid so.

Let's take an hour just to be safe.

Thank you, your Honor.

The Court's adjourned for an hour.

12

(Whereupon, there was a recess in the

13

proceedings from 12:58 P.M. until 13:58 P.M.)

14

THE CLERK:

15

MR. LAURENCE:

16

THE COURT:

17

MR. MATTHIAS:

I'll use this downtime wisely to set

19

THE WITNESS:

I apologize for the delay, your Honor.

20

THE COURT:

18

21

The Court is back in session.
Professor Baldus is in the restroom.

Okay.

We'll wait.

up.

No problem.

No problem.

The worst thing

a judge can do for people is to be on time.

22

You may proceed when you are ready, Counselor.

23

MR. MATTHIAS:

Thank you, your Honor.

24
25
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 395

1690

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

CROSS-EXAMINATION CONTINUED
BY MR. MATTHIAS:

3

Q

Welcome back, Professor.

4

A

Thank you.

5

Q

If you could look at paragraph 27 of your own

6

declaration.

7

A

All right.

8

Q

Are you with me?

9

A

I'm with you.

10

Q

I'm focusing primarily on the last sentence which we

11

know from that sentence that one thing -- one thing that did not

12

figure in your coders' analysis was how a reasonable juror would

13

decide factual issues in a case; right?

14

A

That was not the test.

15

Q

Well, that's -- it didn't figure in their analysis at

17

A

That's right.

18

Q

Do you think that how a reasonable juror would view a

16

all.

19

case is very important to a prosecutor who would need to make a

20

charging decision in the real word?

21
22

A

I don't have any factual knowledge of that, but I

would assume that's the case.

23

Q

24

would hope.

25

You'd probably hope it was the case.

I think we all

Well, on that point then, let me ask you this, and if
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 396

BALDUS - CROSS-EXAMINATION/MATTHIAS

1691

1

you could turn to footnote -- just turn to page one and take a

2

look at the footnote 18.

3
4

And my question is, how likely do you think it is
--

5

A

Page one?

6

Q

No.

7

I'm sorry.

It's footnote 18 which begins on page

10 and spans over to page 11.

8

A

Okay.

9

Q

And I'll wait until you look up, so I don't want to

10

start.

11

A

Okay.

12

Q

Now, my question is, how likely do you think it is

13

that a prosecutor would charge multiple special circumstances

14

for which there was no persuasive evidence and yet fail to

15

charge the only one for which there was legally sufficient

16

evidence?

17
18
19
20

A

I don't know how often that happens but it happens.

That's what I can tell you from our findings here.
Q

So it certainly was a hypothesis that you entertained

in that footnote.

21

A

We looked at the facts and we found that sometimes.

22

Q

And so you found the situation where the jury had

23

rejected the specials that the prosecutor thought were there but

24

the prosecutor had somehow overlooked a special circumstance

25

that you found.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 397

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yeah.

1692

I think it would arise when you have a clearly

2

obvious special, like an armed robbery, and there is also lying

3

in wait in a case and the prosecutor -- I'm speculating here as

4

you are -- and the prosecutor says, "Well, let's just charge the

5

armed robbery because it's a slam dunk," but the jury doesn't

6

believe it is.

7

Q

That's why lying in wait was not charged.

Do you think a prosecutor who goes through the mental

8

process you just described is somehow impairing the

9

constitutionality of the state's death penalty statute?

10

A

No.

I don't think it has anything to do with it.

11

Q

But it certainly hurts the death-eligibility rate,

12

doesn't it?

13

A

It could.

14

Q

Well, it would by definition.

You think it's death

15

eligible.

16

else, either as a display of largess, or the prosecutor doesn't

17

have any money, or they know something about a witness.

18

it's too expensive.

19

town.

20
21
22

The prosecutor says, let's just grade it as something

They --

They can't get the witness back from out of

There's a thousand reasons.
Every time a prosecutor makes a choice like that it

hurts California's death-eligibility rate, doesn't it?
A

Well, it's the -- it's the failure of the jury to make

23

a finding that hurts the death-eligibility rate, not the

24

prosecutor.

25

perception of the case.

The prosecutor is acting on the basis of his or her

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 398

1693

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

Well, I guess, actually we're getting a little bit

2

ahead of ourselves.

3

your analysis, because that ends up being by your definition a

4

non-capital case, and then we get underneath that 15 percent

5

figure that you attach such significance to from your reading of

6

Furman.

7
8

A

But it ends up hurting the prosecution in

I'm sorry to be asking a question.

I'd like a

clarification.

9

Q

Sure.

10

A

Are you talking about death eligibility or rates of

11

death sentencing?

12

If you are talking about death eligibility, when

13

the -- we enhance the death-eligibility rate according to

14

note 18 because we are coding it as factually present even

15

though it was wasn't charged by the prosecutor.

16

Q

I understand.

I understand.

17

A

All right.

18

Q

And we had moved actually beyond that a little bit to

19

this notion of cases that are arguably or absolutely in your

20

view death eligible because of your understanding of the facts,

21

which end up not being death cases because of the exercise of

22

prosecutorial discretion.

23

Every time the prosecutor does that and every time

24

prosecutors across the state do that in any kind of

25

substantial number, we end up with a situation where a whole
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 399

1694

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

bunch of people who could have gotten the death penalty, as

2

you put it, don't and we come dangerously close to that

3

15 percent figure that you ascribe such significance to.

4

So the solution is the prosecutor to charge every

5

special circumstance case and seek death in every one of them

6

at the risk of being criticized by Professor Baldus.

7

A

Is that a question?

8

Q

Well, that's a situation I'm asking you about.

9

Isn't that the implication?

10

When capital cases aren't treated capitally it

11

contributes to what you understand to be the state of affairs

12

that Furman was designed to prevent.

13

A

Again, we need to distinguish between the low

14

death-sentencing rate and the low rates of death eligibility.

15

And you are speaking now to the death-sentencing rate.

16
17
18

Q

Actually, I'm speaking to both, because at the end of

the day that's really what your final analysis is.
I'm talking about that portion of your declaration

19

that begins on page 27 forward.

20

maybe -- I don't know whether this is provable, but let me

21

give it a try.

22

You end up comparing --

I visualize this as a Venn diagram, the outermost

23

circle, the largest circle is your 27,000 universe.

24

then there's a circle somewhat interior to that but wholly

25

subsumed within it, and those are all the cases that you and
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 400

Okay.

And

BALDUS - CROSS-EXAMINATION/MATTHIAS

1695

1

your coders determine upon analysis to be death eligible because

2

of their factual character as you understand it.

3
4

And then inside of that is this tiny little circle
of people who actually get the death penalty.

5

And the problem, as I understand it from your point

6

of view, is that that middle circle is too much like the

7

outer circle.

8

the middle circle and the outer circle, and there's entirely

9

too much daylight between the tiny little circle and the

10

It's -- there's not enough daylight between

intermediate circle.

11

Another way of putting that is too many of the

12

universe are death eligible and too few of those who are death

13

eligible get executed or even sentenced to death.

14
15

A
saying.

That last statement I can understand what you are
That's what the data show.

16

Q

So is that three-circle Venn diagram, is that helpful?

17

A

Yes.

18
19

That's helpful, particularly when you translate

into your assessment of how the situation works.
Q

Okay.

So if every death-eligible case were prosecuted

20

capitally, every death penalty, death-eligible case as you

21

define it were actually prosecuted in accordance with your view

22

of it, and a death verdict were attained that third circle, the

23

smallest of all circles would actually not be that much smaller

24

than the intermediate circle.

25

A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 401

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

The states --

2

A

Sorry.

1696

3
4

That would depend upon how the juries felt

about imposing death sentences.
Q

Right.

I understand.

One way to enhance the

5

likelihood that that smaller circle would be as large as

6

possible which would be approaching the size of the intermediate

7

circle would be to never fail to seek death.

8

A

That's right.

9

Q

Right?

10

A

-- that way.

11

Q

And is that what prosecutors have to do in this state

12

You would reduce the risk of that --

to get out from under this what you see as a problem?

13

A

I don't know what prosecutors have to do.

14

Q

When you recruited the students to work on this

15

project, did you -- you sort of touched upon this before but I

16

want to return to it.

17

You looked at people with attention to detail.

You

18

wanted them to have a decent academic record, but there was

19

no GPA cut off, at least not as a hard and fast rule.

20

What did you ask yourself though about each of them to

21

satisfy you that they possessed the ability and the experience

22

to apply the substantial evidence rule with intellectual rigor?

23

A

I asked mainly the instructors that they had.

Each

24

student had a small section instructor on which they write

25

papers.

I consulted them and told them what I planned to have
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 402

1697

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

them do and asked them their opinion of whether or not they

2

would be up to the task.

3
4
5

I didn't hire anyone if the instructor said no, I
don't think so.
Q

There weren't that many of them really.

I assume you never -- you were never satisfied with

6

their ability and experience to the degree that you thought it

7

was equal to that of an appellate judge?

8

A

No.

9

Q

Who normally is the one who applies the substantial

10

evidence rule in the real world?

11

A

Correct.

They are not judges.

12

Q

Do you think their ability, your students that is,

13

their feel for evidentiary strength, do you think that was as

14

well developed and highly attuned as that of say an experienced

15

prosecutor?

16

A

No.

17

Q

How long do you suppose each student spent coding the

18
19
20
21

case?
A

Two to three hours.

Two to four hours I would say is

better.
Q

All right.

We've got 1900 reports.

We've got 21

22

coders which breaks out to about 90 cases per student, two to

23

four hours.

24

A

Uh-huh.

25

Q

Well, I've exhausted my statistical skills, and we
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 403

BALDUS - CROSS-EXAMINATION/MATTHIAS

1698

1

should ask Professor Woodworth if he's been paying attention.

2

That's quite a bit of time.

3

the cost component of this for your overall budget.

4
5

A

I'm just trying to get a feel for

Well, the cost component was, you multiply the

eight -- let me put it this way.

6

I know what the students cost the school, because

7

they were under contract.

8

was 15,000 each, and then they get paid seven dollars an hour

9

up for 300 hours of work, and then I don't know what the

10

amounts were that were paid to the former law students.

11

didn't keep those records.

12

and to the federal defenders in Oakland.

13

Q

14

don't know.

15

They had in-state tuition, which

I

They sent their bills to the HCRC

And you mentioned -- whatever the multiplier is we

some-odd dollars an hour?

But you mentioned this morning that the rate was 30

16

A

Yes.

17

Q

That would parry with first-year students in Iowa

18

37.50 I think it was.

City.

19

A

Yeah.

First-year law grads.

Yeah.

20

Q

Okay.

Now, when you were selecting students and you

21

considered all of the things we've been talking about, did you

22

consider whether any of them harbored views about the death

23

penalty that might impair their ability to perform accurately

24

and reliably in this project?

25

A

No.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 404

1699

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

No, you didn't?

2

A

I did not ask.

3
4
5

I did not question the students'

attitudes about capital punishment.
Q

Okay.

Then I think I know the answer to this

question -- well, maybe not.

6

To your knowledge -- to your personal knowledge

7

were any of your coders closely affiliated with any

8

organizations that advocate the abolition of the death

9

penalty?

10

A

I have no knowledge of that.

11

Q

If you would, just a moment, take a look at footnote

12

one again and kind of run those names through your mind and let

13

me ask if your answer is the same.

14

three.

15

A

Yeah.

Footnote one is on page

These are unsophisticated students.

They

16

aren't affiliated with political action groups as far as I know.

17

We never even discussed the desirability of the death penalty.

18

That issue never came up in our hundreds of hours together.

19

Our job was to focus on these probation reports and

20

to code these things accurately, and that was the extent of

21

our interaction.

22
23

Q

To your knowledge none of those students had an

affiliation with any anti-death penalty organizations?

24

A

Yes.

25

Q

How about yourself?

Let's ask -- let me ask you about

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 405

1700

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

your own objectivity in this.

2

the death penalty and I know you've been involved in death

3

penalty litigation in a post-conviction context.

4

I know you've written a lot about

But would you describe yourself as someone who has

5

taken sides in the ongoing public debate over the death

6

penalty?

7

A

Yes.

8

Q

And, in fact, you've received awards from your

9

anti-death penalty advocacy, have you not?

10

A

Yes.

But may I elaborate on which side I'm on?

11

Q

Absolutely.

12

A

I'm on the side of people who oppose the death penalty

13

because of the way it's applied in practice.

14

even-handed death penalty system I would not be opposed to it.

15

Q

If we had an

I appreciate that, and you have been -- you've

16

received an award for your anti-death penalty advocacy.

17

the award giver gets to decide why you're getting it.

18

A

Can I tell you what I got the award for?

19

"award for death penalty advocacy."

20

I mean,

I mean --

You said

I'd like to do tell you

what I did to get the awards.

21

Q

Sure.

22

A

I wrote amendments in use in the Iowa legislature.

23

Period.

That's what I did.

24

Q

And --

25

A

Those are amendments that I thought would enhance the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 406

1701

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

fairness and the quality of the death sentencing statute that

2

was ultimately to be adopted.

3

Q

4

this award?

5

A

The Iowans Against the Death Penalty.

6

Q

And they said something in connection with the giving

7
8
9

What is the name of the organization that awarded you

of the award identifying why you were getting it.
A

Yeah.

Because I helped them focus the legislature on

these issues, and that slowed down the process and made it less

10

likely for the bill to be adopted.

11

participation was.

12

the legislators.

13

Q

That's what the effect of my

I was a technician writing amendments for

Would it be wrong for them to say publicly that they

14

gave you that award -- and again, they were speaking of their

15

purpose in giving you the award -- it was an award for your

16

anti-death penalty advocacy?

17
18
19
20
21

A
anything.
Q

Well, they can say that.

I wasn't advocating

I was writing amendments.

Period.

Whether it's right or wrong that's why they thought

they were giving you the award.
Okay.

That's all.

If you would, turn to paragraph 28, and we're

22

going to have to do -- we're going to have another definitional

23

discussion.

24
25

I'm going to ask you to explain some terms to me.

My focus here is on the last sentence.
sent you to the wrong place, or maybe I didn't.

I'm sorry.
If I said

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 407

I

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1702

footnote I meant paragraph.

2

A

Paragraph 28; yes.

3

Q

I sent you to the right place and didn't know it.

4

You are describing the legal sufficiency standard, and

5

you said in your application of this principle, exculpatory

6

evidence offered by the defendant as reported in the probation

7

report is given no weight, but incriminating evidence offered by

8

the defendant is credited.

9

Now, this is something we touched upon very, very

10

briefly before lunch, and now I'd like to return to it, and

11

what I'd like to do is first, let's focus on that very last

12

word "credited."

13
14

When you say "credited," you mean treated as credible?
Is that what you mean by "credited"?

15

A

I take it as true.

16

Q

Take it as true.

Okay.

And as contrasted with the

17

phrase in the immediate preceding clause, given no weight that's

18

the equivalent of completely ignored?

19

A

Yes.

20

Q

Is that your understanding of how an appellate court

21
22

applies the substantial evidence test?
A

Yes.

That's on the basis of my study of teaching

23

criminal law for many years and having read hundreds of legal

24

sufficiency cases.

25

perception of lawyers that practice criminal law that I know.

That's what I infer, and that's the general

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 408

1703

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

And that's why I asked you about it.

You said

2

"completely ignored," and this morning you said it was your

3

understanding that appellate courts give little or no weight,

4

and I'm just trying to be precise.

5

A

I'm not going to quibble about that.

I haven't done

6

enough study of it to be able to quantify the extent of what

7

weight might be given to it.

8

very rare, and every practicing criminal lawyer knows that.

9
10

Q

It may be in some cases, but it's

Well, you had to instruct your students whether to

give it little or no or none at all.

11

A

I told them none at all.

12

Q

Now, let's look at some other words in that same

13

paragraph, "exculpatory" and "inculpatory."

14

I'd like to know a little more about how you use

15

those terms, and specifically, when you say "inculpatory" and

16

"exculpatory," you mean inculpatory and exculpatory as to

17

what crime?

18

A

19
20

It would depend upon M1 liability and the presence of

a special circumstance.

That's what that relates to.

If it's exculpatory, that would mean if you

21

credited it that would reduce the likelihood of a court

22

finding M1 there, if it was focused on M1.

23

If it was focused on essential special

24

circumstances it would reduce the chances of the fact finder

25

finding the special circumstance present.

If it was

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 409

1704

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

inculpatory, just the opposite would be the case.
Q

I think you've answered my question.

I want to make

3

sure.

My question was, you considered the

4

inculpatory/exculpatory dichotomy in regard to an offense, and

5

the offense is not necessarily the charged offense, it's not

6

necessarily even the convicted offense, it's the hypothesized

7

offense with first-degree murder with special circumstances?

8

A

Yes.

9

Q

All right.

Now, I'm just curious if you can

10

understand, or you've had experience with the same piece of

11

evidence being both inculpatory and exculpatory with respect to

12

one crime as opposed to another.

13
14
15

A

No.

I'd have to give more thought to that.

I can't

give you an answer off the top of my head.
Q

All right.

Let me give you an example.

16

words which are uttered by the defendant.

17

A confession,

defendant confesses as follows:

18

"Yes, I killed him.

Let's say the

I built up the

19

courage by drinking a case of beer and

20

doing three lines of coke, and then I

21

killed him."

22

Now, we all can see I think the exculpatory quality of

23

that -- pardon me -- the inculpatory.

Maybe less easy to see is

24

the exculpatory quality.

25

students were to a more nuanced statement like that.

I'm just wondering how attuned your

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 410

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1705

Were they instructed to focus on, "I killed him, I

2

killed him," and ignore all the part about the case of beer

3

and the lines of coke?

4

A

Yes.

5

Q

Okay.

6

I got the idea.

How about this?

7

"I killed him.

Of course I killed

8

him, and I'm damned glad I did.

9

After

all, I caught him in bed with my

10

girlfriend."

11

Is that inculpatory, exculpatory, both or neither?

12

A

I'd say the first part that he killed him would be the

13

only part you would take into account.

14

tend to be a mitigating factor, and we aren't taking that into

15

account.

16

Q

It would negate malice?

17

A

No.

18

Q

It wouldn't?

19

A

Well, it might.

The latter part would

20

It might?
That's if you wanted to credit it.

We didn't credit it.

21

Q

Right.

22

A

That's a perfect example of when we ignore what the

23

defendant's offering up as exculpatory evidence.

24

perfect example, because if you read those probation reports

25

they are rife with statements like that.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 411

That's a

1706

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

2

Let's just continue this pattern.
"I shot him.

I think I get it.

Damn right I did.

I

3

shot him twice right between the eyes.

4

I

thought he was reaching for a gun."

5

A

Same --

6

Q

It's all incriminating --

7

A

We just take the incriminating --

8

Q

-- and we just ignore the part about reaching for a

A

We ignore it just like the probation officers ignore

12

Q

I'm sorry?

13

A

You read the probation reports.

9

gun?

10
11

14
15

it.

They ignore it as

well, believe me.
Q

16

All right.
"Yes, I killed her.

You see, we had

17

sex that night, and just like -- it was

18

just like we'd had sex a hundred times

19

before.

20

going to claim I raped her, so I had to

21

kill her because I just went nuts.

22

control at the thought of having to face a

23

rape charge."

24

Kind of a mixed bag isn't it?

25

A

Yeah.

But this time she told me she was

I lost

I'd have to think a little bit more about that

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 412

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

one.

1707

That's a little more complicated.
Q

Well, other than exculpatory evidence, what else in

3

the probation reports did you instruct your students not to

4

credit?

5

A

Nothing.

6

Q

All right.

7
8
9

So you didn't tell them to ignore

inadmissible evidence?
A

No.

We did not focus on the admissibility of the

evidence that was reported in the probation reports.

10

Q

So --

11

A

All the evidence that -- I can say this, that I can't

12

think of a probation report and a final narrative statement that

13

rests on inadmissible evidence.

14

are very few.

There may be some, but there

15

Q

How would you know?

16

A

Because I know the law of evidence.

17

Q

You think a Miranda violation would ordinarily appear

18

on the face of a probation report?

19

A

No.

20

Q

Let me try this.

What if the entirety of the evidence

21

supporting murder one liability and special circumstances was

22

based on inadmissible hearsay?

23

be sure, but totally inadmissible.

24
25

Legally sufficient in quanta to

That case would get coded as a death-eligible case,
would it not?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 413

1708

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

It could be.

That could happen.

2

Q

Well, why wouldn't it be?

3

A

Well, I don't know.

I'd have to tell you the facts of

4

the case, if some issue like this comes up -- look, these issues

5

didn't arise very often.

6

people who were convicted of crimes, and very rarely would you

7

find the case parsing with evidence in that kind of way.

I can assure you of that.

These were

8

Q

When you say the case parsing --

9

A

That is the probation report, the probation report.

10

These probation reports have been written by probation officers

11

who are really kind of down to earth people, and they report the

12

facts as they understand them to be in the case, and that's what

13

we went by.

14

Q

15

So you made no effort to educate your coders on the

California Evidence Code?

16

A

No.

17

Q

Did you make any effort to edify them as to California

18

corpus delicti rule?

19

A

No.

20

Q

Did you make any effort to acquaint them with the

21

constitutional rules that govern the admissibility of an

22

accomplice's statements?

23
24
25

A

No.

We went by the facts as reported by the probation

officer.
Q

So the Fourth Amendment made no difference?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 414

1709

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

No.

2

Q

So if illegally-seized evidence was the support for

3

murder one liability or a special circumstance, and the

4

underlying Fourth Amendment violation was miraculously omitted

5

from the probation report's description, that case got coded as

6

death eligible?

7
8

A
you.

That's too hypothetical a case for me.

I can't tell

We did not go into all these subtilties of the law.

9

We took the cases as the probation officers

10

presented them, and my suggestion is, if you find that that

11

is unacceptable, then that's a position you can take.

12

I'm telling you what the basis of the judgments

13

were and what the probation officers reported.

14

stop.

15

Q

Back to the probation reports.

Period.

Full

Is it your

16

understanding that the information in the probation reports

17

comes somewhat from, substantially from, exclusively from police

18

reports?

19
20
21

A

Well, also interviews with the -- that's the best

evidence, the stuff that's coming from the police reports.
But often there would be independent witness

22

statements that might not have been in the report, but also

23

the statements of the defendant and the statements of the

24

victim -- the non-decedent victims in the case.

25

probation reports would often include that kind of

The

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 415

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

information.

2

Q

1710

3

And it might or might not shed any light on the

factual circumstances surrounding the crime?

4

A

Yeah.

5

Q

I mean, certainly comments from family members

6

speaking about what they thought was appropriate punishment --

7

A

Oh, no, no --

8

Q

-- had no bearing on --

9

A

I'm talking about the witnesses --

10

Q

I understand.

11

A

-- the statement of witnesses, by non-decedent

12

victims, for example, and those were all very valuable pieces of

13

information.

14

Q

Whatever it's admissibility?

15

A

Yes.

16

Q

And with respect to -- well, police officers who

17

extract involuntary confessions rarely describe the involuntary

18

circumstances in their police report.

19

You think that's fair to say?

20

A

I don't have any knowledge of that.

21

Q

Well, let's assume they don't.

22

A

Okay.

23

Q

And if that's the case, and the principal source is

24

the police report, an involuntary confession, therefore an

25

inadmissible confession, would still -- the involuntary
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 416

1711

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

character of it would not appear in the probation report?

2

A

That's true.

3

Q

And if that's what was used to support M1 liability

4

with special circumstances, that case would get coded as a

5

death-eligible case?

6

A

It possibly could.

We just don't think there are --

7

Q

Even if in the real world a proper judicial ruling

8

would exclude that and maybe even make the case wholly

9

unprosecutable, not just death eligible, not even prosecutable

10

at any level?

11

A

Well, they all resulted in a conviction.

12

Q

Well, I'm asking a hypothetical.

13

A

Well, but the hypothetical is not applicable because

14

every case resulted in a conviction and has a probation report

15

associated with it.

16

Q

Right.

I'm not talking about your sample.

But I'm

17

discussing a probation report that would not reveal the nature

18

of the involuntary circumstances surrounding the extraction.

19
20

This may not have been a probation report you would
encounter.

21

I appreciate that.

Let me ask you this.

Did you give your students

22

any instruction regarding the defenses at all, any defenses

23

at all?

24

partial defenses?

25

A

Self-defense, the role of voluntary intoxication,

Yes.

Was that covered in any of the materials?

We talked about defenses, but normally the

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 417

1712

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

evidence of the defense was coming from the defendant, and we

2

discounted it.

3

Q

Okay.

4

A

Remember, these people were all convicted.

5

Q

I understand.

6

A

Okay.

7

Q

How about in the felony murder context?

How much time

8

or paper was devoted to edifying your student coders about

9

defenses to the underlying felony to a hypothesized felony

10
11
12
13

murder special circumstances?
A

We instructed them to code what was charged, and found

with respect to the underlying felonies.
Q

That's what they did.

My question, though, is -- may involve a hypothetical

14

where there was no felony murder charged.

15

felony murder, special circumstances, and there was no

16

underlying felony charged, but the facts in your coders'

17

estimation appear to support it.

18
19

There was no separate

My question is, how much did your coders know about
defenses to the underlying felony?

20

Let me give you an example to make it easier.

21

Let's suppose the underlying felony in a felony

22
23

murder case is rape.
What, if anything, did your coders know about the

24

effect of a mistaken but good faith and reasonable belief

25

that the victim had consented?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 418

1713

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

A
law.

Oh, they would know that from having taken criminal

They would know that much.

3

Q

Were they -- they would know that --

4

A

They would know that that could possibly be a defense.

5

Q

Mistaken but good faith and reasonable belief?

6

A

Yeah.

7

10

Those would be the

kinds of issues they would bring to me.

8
9

And they would understand.

Let me tell you, when any of these subtle issues of
law came up they brought them to me to resolve.

They didn't

just do it on their own.

11

So that if there was clear evidence in the case

12

that there was a strong defense that you could really credit,

13

which is very rare, on the facts as they were given by the

14

defendant, then we would take that -- we would take that into

15

account.

16

about.

17

Q

18

defendant.

19

A

But that's a very rare circumstance you are talking

I thought you ignored stuff that came from the

No.

The -- if we saw -- generally, we ignored it.

20

But if we saw that there was clear evidence and the state

21

admitted that there was a defense and the probation officer said

22

that we think there's a defense here, then we would credit it;

23

yes.

24
25

Q

How does the prosecution evince their belief that a

defense may be viable except by not charging it?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 419

BALDUS - CROSS-EXAMINATION/MATTHIAS

1714

1

I mean, do you see recitations in probation reports

2

by probation officers explaining why they didn't charge it at

3

a higher degree?

Have you ever seen that?

4

A

Not in a probation report, no.

5

Q

Did you see it in any of the materials?

In any of the

6

cases, any of the 1900 cases, was there some description from

7

the prosecutorial agency that explained why they didn't charge a

8

special that you thought was there, for example?

9

A

No.

10

Q

Now, how confident are you that for purposes of

11

California's felony murder special circumstance that your coders

12

were mindful of the distinction between a murder committed in

13

the course of a robbery and a robbery committed in the course of

14

a murder?

15

A

We spent a lot of time on that.

16

Q

'Cause one of those is death eligible and the other

17

one isn't.

18

A

Yes, I understand that.

That was one of the issues

19

that was highlighted in the HCRC legal materials, and we went at

20

length on that.

21

Q

Now, credibility did not figure in this at all --

22

credibility of determinations.

Your students were not asked to

23

assess the strength of evidence except to the extent that it

24

bore on the legally sufficient evidence standard; is that

25

correct?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 420

1715

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Well, credibility of witnesses would depend on whether

2

it was a defendant or somebody else.

We wouldn't give any

3

weight to the testimony of -- the exculpatory evidence of the

4

defendant.

5

Q

Well, other than that absolute rule of not believing

6

anything a defendant ever says, did you ask the students to

7

assess the strength of the prosecution's case?

8

A

Yes.

Yes.

9

Q

In any way?

10

A

How much evidence was there?

11

evidence that they had?

12

How strong was the

reported in the probation report?

13
14
15

How many witness were there?

What was

Very often there wasn't much information, but in
other cases there was an enormous amount of information.
Q

Did you evaluate the strength of the evidence for any

16

purpose other than answering the question posed by the

17

substantial evidence rule?

18

A

No.

19

Q

So, in a particular case, let's say the sole witness

20

to the events establishing a special circumstance was an

21

alcoholic with 20/60 vision and 12 felony convictions, but the

22

refuting evidence, refuting the special circumstances that is,

23

were independently cross-corroborative accounts of exactly the

24

same event from 12 Eagle Scouts and the Dalai Lama, that case

25

would get coded as death eligible?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 421

1716

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3
4

A
Scouts?

So you are saying we had an alcoholic and then Boy
They are the ones offering the testimony?

Q

Is that it?

The special was supported by an alcoholic with bad

vision and many felony convictions.

5

A

Okay.

6

Q

Negating that -- by the way, the former is legally

7

sufficient.

8

Lama, who undermined the special circumstance.

9
10

Negating that are 12 Eagle Scouts and the Dalai

The special alcoholic with the felonies, incredible
though you may think he is, is legally sufficient.

11

And it's for that reason that that case would get

12

coded under your system, I think, tell me if I'm wrong, as

13

death eligible?

14

A

I don't see where you are coming up with this.

We

15

have -- that's the kind of situation where we would weigh the

16

credibility of the witnesses.

17

coming from somebody who was totally unreliable and the

18

exculpatory was coming from people who were reliable, we would

19

be inclined to follow the exculpatory evidence.

20
21

Q

If the inculpatory evidence is

I thought credibility only mattered, or weight,

strength of evidence only mattered -- it's a binary question.

22

Does it or does it not meet the legal sufficiency

23

standard?

24

designed your --

25

A

Isn't that right?

Isn't that the way you've

Well, what I'm saying is you use your sense when you
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 422

1717

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

look at a record.

2

the witnesses were all the Boy Scouts and they said there was no

3

special and the alcoholics said there was, we would be inclined

4

to go with what the Boy Scouts said because they were more

5

credible witnesses.

6

would do in reading a report.

7

Q

If you look at that record you would say if

That's just a practical thing that anybody

Where in the data collection instrument is there a

8

place to code very credible, slightly credible, more credible

9

than not?

Where does that come into your analysis?

10

A

Close call.

Close call.

11

Q

Close call on what?

12

A

On the presence of the special or the M1 liability.

13

There's are a whole series of close-call issues we have

14

throughout DCI.

15
16
17

Q

And the close call is close call on whether it's

legally sufficient?
A

The close call is on whether or not you think that the

18

evidence would support this finding and would be enough to

19

persuade an appellate court; yes.

20
21

Q

I thought that's exactly what you told your students

not to consider?

22

A

We are not talking here about statements of

23

defendants.

24

an alcoholic who -- are you talking to the alcoholic?

25

the defendant or a witness?

I thought you were talking about the statements of

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 423

Was he

1718

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

I misunderstood your question, sir.

2

Q

If you would take a look at paragraph 27.

3

A

Yeah.

4

Q

All right.

5

"The second core principle of

6

interpretation applies when the factual M1

7

status of the case or the presence or

8

absence of a special circumstance in the

9

case is not determined by a CFF.

In these

10

situations the issue is not what the coder

11

believes would be the quote, correct,

12

unquote, factual determination given the

13

conflicting evidence in the case, nor is

14

the coder's -- nor is the test a coder's

15

assessment of how a reasonable juror would

16

decide the factual issues in the case."

17

A

Right.

18

Q

The issue is, is there legally sufficient evidence --

19

you've gone to great lengths to tell me that was the standard.

20

A

Let's take your hypothetical.

21

Q

Okay.

22

A

And the question would be, if the jury found this guy

23

guilty and found a special, would it be affirmed by the Supreme

24

Court of California?

25

Q

That's the issue.

Actually, let's say in my hypothetical the defendant
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 424

1719

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

was accused -- he was convicted of voluntary manslaughter, and

2

the task before your coder is might this be a special

3

circumstance?

4

circumstances?

Might this be murder one with special

5

A

Yes.

6

Q

And if you pay attention to the testimony recited, or

7

the account recited in the probation report attributable to the

8

alcoholic with poor vision and felony convictions, it is a

9

murder one with specials.

10

But if you look at other evidence in the record

11

that undermines it and the source of that is the 12 Boy

12

Scouts -- forget the Dalai Lama -- that case would get coded,

13

even though the jury returned a verdict of voluntary

14

manslaughter or the defendant pleaded to it more correctly,

15

that would get coded as death eligible.

16

And it sounds to me -- if the answer is no, it's

17

only because you are engaging in credibility determinations,

18

which is the one thing you told me you weren't doing.

19

straighten me out.

20

A

21

defendant.

22

credibility in our eyes, just like defendants have no

23

credibility in the eyes of appellate courts.

24

that we are applying with respect to credibility.

25

Okay.

So

The credibility determinations relate to the

We don't believe what the defendant says.

He has no

That's the rules

All the other things you take into account and you
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 425

1720

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

put them in the mix, and you say, if this guy was convicted

2

how would the Supreme Court of California respond?

3

And under those circumstances if we look -- if we

4

make a determination that we think a jury would find it to be

5

a death-eligible case we look for authority to establish

6

that.

7

That's -- these are not just guesses.

We are

8

looking at appellate authority to support the judgments that

9

this case is one that would be sustained by the California

10
11

Supreme Court.
Q

So if the source of the evidence establishing M1

12

liability and special circumstance is a hopelessly incredible

13

person, that case would not be coded as a death-eligible case

14

even though the hopelessly incredible testimony is legally

15

sufficient?

16

A

17

I think in this case what the students would do is

code this as a close call.

18

Q

Then what would you do?

19

A

I would make a determination of whether or not I

20

thought that this would be sustained by the appellate court.

21

there was a conviction I would need to find some authority to

22

support that position one way or the other.

23

I would like to find some evidence that if there

24

were a conviction in this case, a case that said, "No.

25

was inadequate," the presumption is that whatever the finding
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 426

This

If

1721

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3
4

is of liability that that's going to be sustained.
Q

Let's assume this was in a case where there was a plea

of voluntary manslaughter so there is no -A

No, no.

What I'm saying is we look for other

5

authority, Counsel.

6

similar to this that did result in a murder one conviction.

7
8
9

Q

We look for other cases that had facts

You know that appellate courts do not reweigh the

evidence and make credibility determinations?
A

They make a determination, sir, of whether or not the

10

evidence was sufficient to support the finding of liability.

11

That's what they do.

12
13
14
15

Q

And in doing that they do not reweigh the evidence.

You know that.
A

They do not formally reweigh the evidence.

They ask,

is this a credible finding?

16

Q

They do --

17

A

Could juries -- rational juries reach this

18

determination and if they say, "Yes," then that's sustained?

19

Q

And a rational juror could be an alcoholic.

20

A

That's right.

21

Q

And they are not always wrong.

22

wrong.

23

A

That's right.

24

Q

So this case would get coded as death eligible?

25

A

This case could get coded as death eligible, yes.

They are not always

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 427

1722

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

It -- not in the abstract, Counsel.

The thing that

2

you are overlooking I think is that we look to authority on

3

the basis of decisions of the appellate courts to make these

4

judgments.

5

Q

6

They weren't made in the abstract.

Does the DCI contain quantifiable measures of the

strength of evidence?

7

A

No.

8

Q

It would have been possible to include that feature,

9

would it not?

10

A

It could have been.

11

Q

In fact, you developed those very features.

12

A

Yes.

13

Q

And used them.

They were available to you.

You could

14

have accounted in this study for the strength of evidence and

15

you chose not to.

16

A

We chose not to.

What we chose to do is rely on our

17

individual assessments of the cases and to take that into

18

account in that context.

19

Those other studies were involved in quantitative

20

measures of race effects where strength of the evidence was

21

considered to be important for that judgment.

22

Q

If you would please take a look at paragraph 32.

23

A

(Complies.)

24

Q

In that paragraph -- I'm focusing principally on

25

language that appears in the third sentence where you talk
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 428

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1723

about:

2

"Close call classifications arise

3

when a M1 liability or special

4

circumstance classification is not

5

determined by a CFF and the circumstances

6

of the offense are sufficiently well

7

understood to support coding."

8

Now, I'm going to ask you about that state of affairs.

9

A

What line are you on, Counselor?

10

Q

It's the third sentence.

I'm actually looking at your

11

fifth -- fourth declaration, not fifth, but I happen to know

12

there's no difference in content in this paragraph.

13
14

A

I've got to find what you are talking about.

What

footnote is it anchored to?

15

Q

16

in it.

17

It's not a footnote.

Let's do it this way.

Well, footnote 19 and 20 appear

Are you at paragraph 32?

18

A

Yes.

19

Q

You see the caption?

20

A

Yeah.

21

Q

First sentence begins "We measured."

22

A

Yes.

23

Q

Second sentence begins "Each of."

24

A

Okay.

25

Q

Third sentence begins "Close call."

"Measuring death eligibility" --

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 429

1724

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

That's the one.

2

A

Okay.

3

Q

Now, let's look at the last nine words.

4

A

Yes.

5

Q

Eleven words.

6

A

Yeah.

7

Q

That state of affairs:

8

Sorry.

"Circumstances of the offense are

9

sufficiently well understood to support

10

coding."

11

That's a state of affairs you are describing.

12

A

Yes.

13

Q

And my question is, how do you know when that state of

14
15

affairs is achieved?
A

Well, we make a judgment as follows.

We make a

16

judgment as to whether or not there's enough procedural

17

information in the case to apply the controlling fact finding

18

rule, and we know enough about the nature of the interaction

19

between the defendant and the victim and what was done to

20

determine if there were special circumstances present in the

21

case.

22

Q

That's what we characterize as sufficient information.
So as soon as you have enough to know it's M1 and

23

special circumstances you stop.

No need to look for more

24

evidence, like evidence that might, say, negate malice and make

25

it not M1?

You know --

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 430

1725

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

We look at all of the evidence.

2

Q

But you have to stop at some point, and you stopped --

3

A

What I'm saying is that evidence of -- evidence that

4

would negate malice, that would be part of the ball of wax so to

5

speak that made the case sufficiently well understood to code.

6
7

Q

Well, maybe not.

That's why I'm asking.

When is that

state of affairs reached?

8

The circumstances of the offense are sufficiently

9

well understood to support coding, and if it's sufficiently

10

well understood to you to support the coding you want, M1

11

with special circumstances, you stopped.

12

--

13

A

Once you get enough

Sir, that statement is completely incorrect.

14

the coding we want.

15

have a desire one way or the other in any of those cases.

16
17

Q

We go by what the facts tell us.

It's not

I appreciate that.

I will rephrase it.

We don't

I appreciate

that.

18

Not the coding you want, but M1 special

19

circumstances.

If that point is reached the search for

20

further evidence is suspended.

21

A

No.

No.

22

Q

Okay.

You look at all of the evidence.

I'm asking about what's before you, because

23

your describe this dynamic where you look for evidence and you

24

think you have enough and you make a coding decision, as

25

contrasted with the situation where you look at the evidence
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 431

BALDUS - CROSS-EXAMINATION/MATTHIAS

1726

1

before you and you feel maybe you don't know enough about the

2

case and you have to go to other sources.

3

A

That's right.

4

Q

And what if it's those other sources that contain the

5
6

evidence that indicates malice.
A

You won't find them, will you?

Well, we make a judgment on the basis of whether or

7

not we have enough information here to make a sensible

8

evaluation of the whether or not a finding of M1 would be

9

sustained by the appellate court.

10

That's the only question we

are asking.

11

And it's true, if we found that there wasn't enough

12

evidence to be able to have confidence in that judgment, then

13

we would code it as a case where we would need to get

14

additional information.

15

Q

Have you ever heard the expression "less is more"?

16

A

Yes.

17
18

I'm not sure how it applies in this context.

Perhaps you can help me with that.
Q

I'll give it a shot.

Sometimes a manslaughter is

19

something that looks very much -- very much like a murder until

20

you know more.

21

A

That's right.

22

Q

It is a lesser crime but a richer and more complex

23

fact pattern, and if you stop when you decide it's M1 you very

24

well may not know why it's not M1 but VM.

25

And I'm asking you in the face of a statement that
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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1727

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

says we code when we've reached the point where the

2

circumstances of the offense are sufficiently well understood

3

to support a coding, and you tell me the coding you would

4

make is M1 with special circumstances, you are blinding

5

yourself, maybe not willfully, but in effect to evidence from

6

other sources that would mitigate malice and reduce what

7

looks like an M1 with special circumstances to a voluntary

8

manslaughter?

9

A

Counsel, you are raising two issues.

One is, do we

10

have to always consult additional information beyond the

11

probation report to make a valid judgment?

12

That's a question about the methodology.

That's one question.

13

The second question is, when you look at a case

14

that resulted in a voluntary manslaughter conviction with

15

intentional killing, we would look at the additional

16

information in the probation report to see if that really

17

constituted a first-degree murder case or a voluntary

18

manslaughter case.

19
20

It seems to me you are talking about two different
things, if I'm reading your questions correctly.

21

It's true that in most of the cases we did not

22

consult or have access to richer, different information.

23

were restricted to the probation reports.

24

probation report didn't have evidence that would allow you to

25

assess whether or not this was a voluntary manslaughter

We

And if the

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 433

1728

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

conviction we would have been mislead.

2
3
4

But that is not the typical case by any stretch of
the imagination.
Q

Now, before you decided to structure this entire study

5

around your definition of death eligibility, which is this

6

factual assessment by reference to the legally sufficient to

7

support a conviction standard, did you undertake to learn or

8

research how the United States Supreme Court has used that term

9

in the years since Furman?

10

A

Legal sufficiency?

11

Q

No.

Death eligibility.

12

A

No.

I understand the term.

13

Again, it's a term of art.

I can't say precisely that I did a separate

14

investigation of that.

15

investigation.

16

But what I did do is the following

I looked at the study that we did for the New

17

Jersey Supreme Court where we used precisely this

18

methodology, and these very issues were brought before the

19

New Jersey Supreme Court as a body, and they instructed us to

20

apply the methodology that we are applying right here.

21

was the legal authority that I was relying on in this case.

22

That

And a similar situation happened in our study of

23

Nebraska, where the prosecutors objected to our use of this

24

methodology, and it came before the crime commission, and they

25

said, "We think this is an appropriate methodology."
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 434

That's the

BALDUS - CROSS-EXAMINATION/MATTHIAS

1729

1

authority that we were relying on that arose in the conduct of

2

empirical studies.

3

Q

If it's clear from Supreme Court decisions that death

4

eligibility means something to them, do you think that's

5

irrelevant to how you define --

6

A

And I think it means that a case is death eligible if

7

a case has elements of the murder one liability and the special

8

circumstances present in them.

9

Q

I realize that's your definition.

10

A

Let me try Justice White, Justice White --

11

Q

My question was, did you edify yourself as to how the

12

United States Supreme Court uses the expression "death eligible"

13

since Furman?

14

A

15

Yes.

That's what I'm coming around to.

When you look at the cases, for example, Justice

16

White in a case -- I think it was the Georgia case that

17

sustained the "hack factor," and it is either -- he was

18

quoting Justice White, but maybe the decision was written by

19

Justice Marshall, that there are many, many cases comparable

20

to this where death sentences are not being imposed or

21

sought.

22

the death-eligible cases that aren't being prosecuted.

23

That's what informed me.

24
25

That was clearly what he had in mind, that those are

And that idea came from Furman.

It came from the

opinion of Justice White in Furman, and is echoed in a number
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 435

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

of Supreme Court decisions.

2

1730

their notion of death-eligible cases.

3

Q

4

eligible"?

5

A

That's my understanding of what

Do you recall whether that phrase was used, "death

I don't know that they used that exact word, but

6

that's the concept that has been imposed in this case under the

7

law.

8

Q

I understand the concept.

9

A

And that's --

10

Q

If we could look at Table One, please.

11

A

Yeah.

12

Q

Now, earlier today you acknowledged that people who

(Complies.)

13

are convicted of first-degree murder without special

14

circumstances have a zero-percent chance of getting a death

15

sentence in California.

16

People convicted of second-degree murder and

17

necessarily without specials, there were never specials

18

associated with the second, they also have a zero percent chance

19

of being sentenced to death.

20
21
22

Likewise, if you are convicted of voluntary
manslaughter, chance of death zero.
And even first degree with specials but the

23

prosecutor doesn't seek death and so no penalty phase is ever

24

convened, chance of death is zero.

25

I'd like you to look at line four, column B, in part
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 436

BALDUS - CROSS-EXAMINATION/MATTHIAS

1731

1

one, where you've got that 55 percent rate calculated by 15,013

2

over 27,453.

3
4

I want to focus on the numerator.

How many of those 15,013 had a zero-percent chance of
being sentenced to death?

5

A

Well, yeah.

Clearly all of the cases that resulted in

6

second-degree murder and voluntary manslaughter had a

7

zero-percent chance of being sentenced to death.

8

Q

So that's about 6,000?

9

A

Yes.

10

Q

Or a little over maybe.

11

A

Right.

Yeah.

Not quite half?

They had a zero-percent chance of being

12

sentenced to death given the way it was charged by the

13

prosecutor.

14

Q

15

right.

16

41 percent of the people who had their cases disposed of as

17

voluntary manslaughters could have and should have been

18

prosecuted capitally?

19

A

All right.

And let me make sure I'm reading this

If you would look at line three, your study shows that

It's -- I'd say they were death eligible according to

20

our definition.

21

I'm not saying what should have been done at

all.

22

Q

If you would look at part two.

23

A

Yeah.

24

Q

Line one, column B.

25

figure.

You've got your 80 percent

The numerator is 15,013 again.

We've seen that number

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 437

1732

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

before.

We know what that is.

That includes all the seconds

2

and all the voluntaries.

3

specials, and it includes firsts with specials where death was

4

not thought.

5

A

Yes.

6

Q

We really can't refine that number down.

It also includes firsts without

We can

7

subtract the 46/42 seconds, and he can subtract 44/53

8

voluntaries, but we don't know how many of those first-degree

9

murders were without specials, and we don't know in how many of

10

those first degrees with specials death was not sought.

11

suffice to say that the number would be less than the total.

12

would have to subtract four separate elements to get that

13

number.

14

But

A

That wasn't the issue that we were addressing here,

16

Q

I know.

17

A

The issue here was --

18

Q

It's the subject of my question.

19

A

Pardon me?

20

Q

It's the subject of my question.

We

15

sir.

I know this -- I'm

21

trying to distill from your information some information that

22

I'm interested in.

23

A

Okay.

24

Q

If you would jump to Table Three you will find this on

25

page 18.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 438

1733

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

(Complies.)

2

Q

Now, here we've got similar kind of data, but this is

3

where the comparison comes in.

4

comparison with New Jersey and Maryland, and in Part Two the

5

comparison is done to Nebraska with a slightly different mix,

6

because in Nebraska you are throwing in the voluntary

7

manslaughters as I read this.

8

A

That's right.

9

Q

Okay.

In Part One we are seeing a

Now, if we were to look -- first let me ask you

10

this.

11

some significance to how California compared to other states,

12

and if you could take a minute to explain to me why that matters

13

in light of Furman.

14
15
16

You wouldn't have done this unless you thought there was

Why does relative breadth matter as opposed to
meeting or not meeting that 15 percent magical number?
A

The issue is not the 15 percent.

17

the rate of death eligibility?

18

The issue is what is

The 15 percent has nothing to do

with that question.

19

Q

Well, what does it have to do with other states?

20

A

It has to do with the following.

The first threshold

21

issue that we were asked to address here was, what's the rate of

22

death eligibility among M1, M2, voluntary manslaughter cases?

23

And when I was analyzing that it occurred to me I

24

did the very same thing before.

I did the same thing in

25

Nebraska and did the very same thing in Maryland -- sorry -Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 439

1734

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

in New Jersey.

2

And therefore I thought since we used exactly the

3

same methodology it might be useful to compare the rates of

4

death eligibility that were generated there with what they

5

are here in California as a point of comparison.

6

Q

I understand.

I'm saying why does the comparison

7

matter?

Why is the state at any given moment with the broadest

8

death penalty always unconstitutional?

9

A

10

department.

11

Q

12
13

I'm just wondering why it matters.

That's not my

I mean, New Jersey

and Maryland are better than California.
A

14
15

No, I'm not -- that's a legal issue.

They are narrower.

They are narrower.

What we were trying to do is show that this state's
death-eligibility rate is far broader than other states --

16

Q

Right.

17

A

-- that we have comparable information.

18
19

It's all a

comparative matter.
Q

Okay.

Well, the next broadest state behind

20

California, if California were to the repeal the death penalty

21

tomorrow -- make it Monday -- on Tuesday would the next broadest

22

one become unconstitutional?

23
24
25

I just want to appreciate why relative comparison
matters.
A

It's a combination of two things.

It's not just

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 440

BALDUS - CROSS-EXAMINATION/MATTHIAS

1735

1

strictly the issue of death eligibility.

What I'm giving you

2

now, I'm giving you my thoughts about the legal theory in this

3

case, which I'm not an expert on.

4

But what I'm saying is the two dimensions that are

5

of importance here are the rate of death eligibility and the

6

death-sentencing rate among death-eligible cases, and I don't

7

know what the rate of death eligibility is among the next in

8

line.

9
10

For example, if you want to look at the next case.
Take your situation --

11

Q

New Hampshire.

12

A

Yes, New Hampshire.

13

Q

So if California repealed the death penalty because

14

its 37.8 is just way too big, it's way too broad, does that mean

15

New Hampshire is now in worse trouble because California is no

16

longer there to be the loss leader?

17

A

Well, that would raise an interesting issue about New

18

Hampshire because they have one sentence -- or perhaps two.

19

They have one or two.

20

and you'd have to do -- if you did a comparable study we don't

21

know what you would find.

22
23
24
25

Q

I can't recall -- which just recently --

Let's turn back to Table Three, where we -- where you

talk about New Jersey and Maryland.
Now, the numbers that you provide there for New
Jersey and Maryland these were derived from studies that you
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 441

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

concluded before you even started your California study;

2

1736

correct?

3
4

A

I didn't do the Maryland.

That was done by another

criminologist.

5

Q

New Jersey was yours?

6

A

I did New Jersey.

7

Q

And Maryland was Paternoster's?

8

A

Paternoster's.

9

Q

Paternoster's.

10

Yes.

Now, you say in paragraph 43 and you've said

11

several times today that the methodology used in the New

12

Jersey and Maryland studies were you say similar to, in the

13

declaration you said identical at one point this morning and

14

then you said comparable at one point this morning.

15

They were not identical, are they?

16

A

17

difference.

18

Frankly, I find it very difficult to see the

Here the difference is that when we did the New

19

Jersey study we didn't use a legal sufficiency test that we

20

are using right now.

21

reasonable jurors under the circumstances would find death

22

eligibility in this case.

23
24
25

Q

We used the test of whether or not

That was the test that we used.

And not to interrupt you but that's a test that you

have eschewed in this study?
A

That's right.

And the reason for it is that I think

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 442

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1737

there's less legal authorities to support it.

2

Here in the methodology we are using here you can

3

look to other appellate decisions in California to validate

4

the judgments that you are making.

5

Under the New Jersey procedure you couldn't do

6

that, but what we got was the imprimatur of the New Jersey

7

Supreme Court.

8

cases."

9
10

Q

Not to jump ahead though, you used a different

standard, but then you ranked them for purposes of comparison.

11
12

They said, "We agree these are death-eligible

Isn't that what's loosely known as an
apples-to-oranges problem?

13

A

Compared them to what?

14

Q

Take a look at Table -- the table -- pardon me.

15
16
17
18
19

Yes,

Part Two of Table Four.
A

Those had nothing whatever to do with the kind of

methodology that we used in New Jersey -Q

Because this is from the supplemental homicide

reports.

20

A

That's right.

That's right.

21

Q

But looking at Table Three --

22

A

Yes.

23

Q

-- where you compare New Jersey to California --

24

A

Yeah.

25

Q

-- those two studies, the New Jersey standard, as I
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 443

1738

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

understand it, was not legally sufficient evidence but

2

persuasive evidence?

3

A

Yes.

4

Q

So --

5

A

Highly persuasive.

6

Q

So --

7

A

And we got the imprimatur of the New Jersey Supreme

8

Court on it, that they agreed with our assessments.

9

all challenged.

10
11
12

Q

They were

I appreciate that they agreed with your assessments,

but the assessment was of a different question.
A

They are essentially the same.

There is very little

13

difference between the two.

I can tell you from having done it

14

many, many times on many, many cases it really -- it comes up

15

with the same results.

Very little difference.

16

The one provides you with more authority when you

17

don't have a court there to put its imprimatur on it, which

18

we didn't hear.

19

we could then seek out authority among the appellate

20

decisions of this state to validate what our judgment was.

21

That's why I like the legal sufficiency test in this

22

jurisdiction.

23

Q

We wanted to be able to make findings that

In New Jersey -- in the New Jersey study, the coding

24

was not done by students.

25

It was done by judiciary personnel,

was it not?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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BALDUS - CROSS-EXAMINATION/MATTHIAS

1739

1

A

Recent law students.

2

Q

They were all employees of the administrative office

3

They were recent law grads.

of the courts?

4

A

Yes.

5

Q

Of course, the New Jersey study was also reviewed,

6

maybe not in its entirety, with 50 experienced judges who

7

participated in a culpability ranking survey?

8

Isn't that right?

9

A

No.

That was done later.

10

Q

Later than what?

11

A

Than my study.

12

Q

I'm sure.

13

A

No.

That was the study they were validating.

They validated the study that I created from my

14

first reports with them.

There's no question about that.

15

The -- Judge Baime took over after I left as special master, and

16

what he did in terms of getting input I don't have knowledge of

17

frankly.

18

Q

At all?

19

A

I have a vague memory.

20

Q

Let me -- do you know the results of the culpability

21
22
23
24
25

ranking survey that was conducted by the 50 experienced judges?
A

I have a general memory of it.

I have not read it

recently.
Q

Would it be fair to say that their findings called

into the question the accuracy and reliability of the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 445

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BALDUS - CROSS-EXAMINATION/MATTHIAS
1

statistical models that you used?

2

A

Not all of the rankings.

They weren't questioning the

3

rankings.

4

questioning the validity of the statistical models.

5

nothing to do with the ranking of the cases.

6

Q

7

A

They were
This had

model.

8

That's not what they were questioning.

9
10

That's what I asked you about was the statistical

Yeah, the models.

It's the kind of models that George

Woodworth produces, not the question about whether or not the
individual cases were adequately coded.

11

Q

Do you know who Professor Weisberg and Naus --

12

A

Yes.

13

Q

And they found flaws with your statistical model as

14

They are consultants to the New Jersey Court.

well.

15

A

Yeah, but they -- Counsel, let me explain something to

16

you.

There's a difference between finding a flaw in a

17

statistical model and drawing inferences from it and finding

18

flaws in coding of individual cases as death eligibility.

19

are completely different things, and Weisberg and Naus never

20

made any judgments about that at all.

21

Q

About that, being the coding?

22

A

The coding.

23

Q

Just the statistical models?

24

A

Yes.

25

Q

Which is what I asked you.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 446

Those

1741

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yes.

2

Q

Thanks.

3
4

And did Judge Baime make the same conclusion?

He abandoned your statistical model; right?
A

He did not abandon the statistical model.

In fact,

5

Judge Baime validated the method that we use to identify --

6

validated the method that we used to identify the special

7

circumstances.

8

I stated very clearly in the "probation report"

9

that he took over and used exactly the methodology that I put

10

in shape, and he defined what the death-eligible cases were.

11

Q

So Judge Baime did not write a report in which he

12

questioned the accuracy and reliability of the statistical

13

models you had developed?

14

A

Now, you are -- again, you are conflating statistical

15

model with the death eligibility of the underlying cases.

16

are not the same things at all.

17
18
19

Q

They

I understand they are not the same thing, and I've

only asked you about statistical models.
A

Okay.

That's a different question.

20

different question.

21

That's a

And he did have questions about them and

so did Naus and the other consultants.

22

Q

Weisberg?

23

A

Weisberg.

24

Q

Now, of course, the New Jersey study was undertaken

25

for a completely different purpose from the study that you
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 447

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

1742

undertook in California; right?
A

Yes.

The predicate to it was, but you had to identify

the death-eligible cases to make it valid.

4

Q

But the purpose of the study was different.

5

A

It was not to define the scope of death eligibility.

6

That's right.

7

race effects in the system.

8
9
10

Q

It was to assess comparative excessiveness and

And that's because New Jersey is what is called an

"appellate proportionality review state."

The Appellate Court

actually performs a form of proportionality review.

11

A

That's right and --

12

Q

And this study was developed in an effort to assist in

13

that effort; right?

14

A

That's right.

15

Q

Now, in the Maryland study the researchers, which I

16

understand you did not do --

17

A

Right.

18

Q

-- that's Paternoster -- you had the benefit of a --

19

pardon me.

20
21

They had the benefit of a "substantial file of
information."

22

That's a quote.

23

A

Yeah.

24

Q

Do you feel that you had a substantial file of

25

information in all 1900 cases in California?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
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BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

A

Yes.

Probation reports are considered high order of

levels of information in this field of research.
Q

Now, the information that appears in Table Three on

4

Part One, line two for Maryland, none of that is your data.

5

I

mean, that's all Paternoster?

6

A

Yes.

7

Q

And he just gave you those numbers so you could plug

8
9

them in?
A

He didn't just give me the numbers.

They were in his

10

article.

He didn't just pull them off the top of his head.

11

They were reported in his study in a journal called "Margins,"

12

M-A-R-G-I-N-S, and that's where I have them, and there's a

13

citation to it in footnote -- let's see, where is -- the

14

citation to it in is Table Three, Part One, note two.

15

Q

Okay.

16

A

And I give the exact page numbers where those data are

17

found.

18

Q

So it came from a published report.

19

A

Yes.

20

Q

If you would, please, turn to page 17 and look at

21

footnote 28 --

22

A

(Complies.)

23

Q

-- where you describe the Paternoster study --

24

A

Uh-huh.

25

Q

-- and jump all the way down to the bottom, to the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 449

1744

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

second-to-the-last sentence.

2

Paternoster provided me with the more precise numbers of cases

3

screened," that is reported in Table Two, that is not

4

information you got from his report or from his article but from

5

him?

6

A

No.

And when you say, "Professor

That was the number screened.

7

of death eligibility.

8

It wasn't the rate

his article.

9

The rate of death eligibility I got from

See, that's a different issue.

That's an issue of

10

how many cases they've screened, and he -- 'cause I didn't

11

know exactly how many they had.

12

Q

Just do this for me --

13

A

He said about 6,000, and I said, "Could you be a

14

little more precise, Ray" --

15

Q

Right.

16

A

-- and this is what he came back with.

17

Q

And that number is somewhere in Table Three -- pardon

18

me -- Table Two?

19

Table Two.

I'm sorry.

It's in Table Two, is it not?

20

A

It's in Table

Three?

21

No.

22
23

Yeah, that's right, the 6,150.

I asked him to clarify

that.
See, what his report shows is here's how many we

24

found were death eligible.

And I said, "Ray, tell me what

25

the population is that you screened?"
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 450

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

He said, "About 6,000."

2

little more precise than that?"

3

Q

I said, "Can't you be a

was 6,150.

4

1745

And he came back and said it

My question is, are the numbers for Maryland in Table

5

Three derived from a published article or from -- is it

6

unpublished data?

7

A

The difference between the 6,150 is unpublished.

He

8

gave me that additional number.

9

thought that was a little bit imprecise, so I asked him for a

10

He had it reported as 6,000.

I

little more detail and he gave it to me.

11

Q

And you did verify his research or his data?

12

A

No.

13

Q

You don't even know whether he did his own coding?

14

A

I know he did his coding in collaboration -- he

15
16
17
18
19

supervised the coding of graduate students that he had.
Q

Do you know that from anything that appears in the

article that you reference in footnote 28?
A

Oh, yeah.

He talked about who does the coding, is my

memory of it.

20

Q

In the article?

21

A

I think so; yeah.

22

Q

Let's look at Table Three again, and look at column B,

23

line 3A.

24

numerator.

25

This is the Carlos Window law.

Again, we see that

Can you estimate for me how many of those 10,516
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 451

BALDUS - CROSS-EXAMINATION/MATTHIAS

1746

1

cases involve cases in which the chance of being sentenced to

2

death was zero?

3

A

No.

4

Q

Can you estimate?

5

A

No.

6

I could go back and do an estimation of that, but

I hadn't done it for the purpose of this analysis, no.

7

Q

Okay.

But in order to reach that number we would

8

calculate it by subtracting first degrees with specials where

9

death was not sought, all seconds, all voluntary manslaughters?

10

A

Yeah.

That would not constitute a death-eligibility

11

rate in my opinion.

12

are representing here.

13

Q

Right.

That would completely confound it what we

In order to get a true death-eligibility rate

14

we have to plug into the numerator of people for whom the chance

15

is zero?

16

A

No.

I think I've defined how we explained death

17

eligibility.

18

and found, or in the absence of controlling fact-finding they

19

could have been charged and found.

20

it.

Either a special was charged and M1 were charged

That's the way we defined

21

Q

Part Two, Nebraska.

22

A

Yeah.

23

Q

And again here, same sort of analysis, comparative

24

analysis to California in Part Two that you did comparing

25

California to New Jersey and Maryland in Part One, the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 452

1747

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

difference being now it's Nebraska, and now we are throwing into

2

the mix the voluntary manslaughter cases; right?

3

A

Yes.

4

Q

Okay.

I don't suppose you could do this without

5

researching it, but if you would look at line 2A, where you --

6

in the Carlos Window where you end up with 55 percent, the

7

numerator in that fraction causing -- resulting in that

8

percentage is 15,013.

9
10

You don't know how many of those were cases in which
the chance of death was zero?

11

A

No.

12

Q

The California and Nebraska methodologies were also

13
14

not exactly the same, were they?
A

15

No.

Different cases were screened.

See, in Nebraska and California they just screen

16

first-degree and second-degree murder, but in Nebraska we

17

also screen voluntary manslaughter probation reports.

18

the only difference.

That's

19

Q

That's the only difference?

20

A

Yes.

21

Q

So when you say in paragraph 48 that they were the

22
23
24
25

same, that's not quite correct?
A

Wait a minute.

I draw the distinction in here very

clearly, the differences between them.
Q

Let's look at paragraph 48.

I could be wrong.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 453

I

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

1748

thought you said they were the same.
A

No.

3

It says here on paragraph 48, it says:
"Both the death-eligibility rates are

4

based on a screen on a death-eligible M1,

5

M2 and voluntary manslaughter cases."

6

That's the distinction.

7

the New Jersey and Maryland study.

8

That wasn't the case under

making here.

9

That's the point I'm

The screening process was the same, but not the

10

population of cases that were screened.

11

difference.

12

Q

13
14

That was the

Well, the probation reports that you looked at in

Nebraska were always prepared post-conviction, weren't they?
A

I don't know that, frankly.

I don't know that.

I

15

delegated a lot of that coding process to my co-author, Attorney

16

Lincoln.

17
18

Q

So if the Nebraska Law Review article says that it's

true?

19

A

What does it say?

20

Q

That the reports were prepared following conviction.

21

A

Well, I guess that would very likely be true, then.

22
23
24
25

I

don't recall that detail frankly.
Q

Whereas in California the reports were often prepared

pretrial, which is what you say in paragraph 16 -A

Yeah.

I'd say about a quarter of them were; yes.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 454

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

1749

So when you did the California study you did not

2

always have as you ordinarily did have in Nebraska the benefit

3

of information gleaned from a completed trial record?

4

A

That's right.

The probation report was often not

5

based on a complete trial record in about a quarter of the cases

6

I would say.

7

Q

Now, last week, as I know you know, Mr. Laurence asked

8

me if I was going to -- actually, months ago he asked me if I

9

was going to ask you about specific cases --

10

A

Yeah.

11

Q

-- and I told him I would.

And then last week he

12

asked me if I would be willing to identify them in an effort to

13

expedite this proceeding, and I said I would and then I did, and

14

I identified 10 cases, and I understand you've had a chance to

15

look at all 10 of them --

16

A

Yes.

17

Q

-- and discuss them.

18

A

Certainly.

19

Q

I'm sure you are relieved to know that it's not going

20

to be 1900 cases.

It's only going to be 10.

21

A

Yes.

22

Q

And I'm going to go through this, and I'd like to do

23

it very quickly, so this is a little unorthodox, but let me tell

24

you something in advance.

25

I'm not here to argue with you.

I just want to

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 455

1750

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

know what it is about these cases that makes them death

2

eligible in your view, and my purpose is not to quarrel.

3

purpose is to learn.

4

A

Okay.

5

Q

My

Now, before we do that --

6
7

MR. LAURENCE:

10
11
12

I have his

materials here.

8
9

Counsel, do you mind?

THE WITNESS:

All right.

I have them right here,

Counsel.
BY MR. MATTHIAS:
Q

Okay.

You're going to need one other thing as well,

and it's Exhibit Triple X.

13

A

That's in your case?

14

Q

Which sounds like an exhibit in a First Amendment

15

case, but --

16

A

17

You are going to have to help me here, Counselor.

I

can't find my way.

18

MR. LAURENCE:

I think they are the thumbnails.

19

MR. MATTHIAS:

No, no.

20

That's Triple Y.

The Triple X

is the spreadsheet that you generated, as I understand it.

21

Where are our witness exhibits?

22

THE WITNESS:

Counsel, can I ask you; is the

23

spreadsheet this document here that you are referring to

24

(indicating)?

25

MR. MATTHIAS:

Yes.

It sure looks like it.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 456

1751

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

THE WITNESS:

2

MR. MATTHIAS:

3

all good.

I have it here as well.
He has a version.

That's fine.

We are

Thank you.

4

MR. LAURENCE:

They are the same.

5

MR. MATTHIAS:

They're the same.

6

they are the same.

7

For our purposes

BY MR. MATTHIAS:

8
9

Q

All right.

The first thing I'd like you to do, if you

would, we know it as Triple X, but you know it as your

10

spreadsheet.

11

A

Just tell us what that is.

Yeah, this is a listing of all the cases -- 1900 cases

12

that are in the database, and the first column gives a project

13

number, the second a name, the offender, and the third the

14

special circumstances that were present under Carlos Window law,

15

and the third under 2008 law.

16

Q

The fourth?

17

A

Oh, I beg your pardon.

Q

Okay.

18

Fourth.

That's right.

Excuse

me.

19

And to make sure I understand this, if some

20

notation appears in columns three or four that notation

21

corresponds to the special circumstance that you ultimately

22

determined was factually supported in the materials before you

23

--

24

A

Yes.

25

Q

-- for that case?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 457

1752

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Right.

2

Q

And if no entry appears it means it was determined not

3

to support a death-eligible situation?

4

A

Yes.

5

Q

Okay.

And so I can reliably thumb through this

6

document, and by correlating an entry under column one with a

7

probation report I could be confident we are talking about the

8

same case?

9

A

Yes.

10

Q

And we are doing just 10, and you know what they are,

11

so let's go through them if we could quickly.

12

The first one is number 17.

13

A

Okay.

14

Q

Now --

15

A

You want me to just proceed or --

16

Q

Well, what I'd like to do is proceed this way.

17

What materials did you examine in your effort to

18

prepare for what you knew would be questions from me on this

19

case?

20

A

I prepared the thumbnail that was created.

I prepared

21

the factual summaries that the students had created, and I had

22

the added assistance of HCRC personnel yesterday, who helped me

23

identify additional authority that we thought was controlling on

24

this case.

25

Q

That was authority that did not, in fact, affect your
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 458

BALDUS - CROSS-EXAMINATION/MATTHIAS

1753

1

coding decision but it was authority that was developed in the

2

last few days --

3

A

Well, look, put it this way.

We had some authority

4

for all these cases, and what HCRC personnel did was to see if

5

they could find any more, and that's what they did.

6

Q

They did not figure in the coding decision --

7

A

Some of them did.

8
9
10
11

There was always one authority that

supported the coding decision.
Q

So in the last few days research has been done to

shore up these codings; is that -A

Not shore up the codings, but to provide additional

12

authority for them.

13

yes, I would agree with you.

14
15

Q

If you want to call that "shoring up," then

Now, you said you had the thumbnail, and then you said

you had the thumbnail twice?

16

A

I meant probation report.

17

Q

Where do those narrative summaries that were -- that

18

superseded the thumbnail and which I never heard about until

19

this morning, do you have those with you?

20

A

I have one right here.

21

Q

Do you have one for every case?

22

A

Yes.

23

Q

I don't have the benefit of that, so I'm not going to

24
25

ask you about it.
A

If you want to refer to it I suppose you can.

Well, all the facts that are in the little narratives
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 459

1754

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

are also in the probation report.

2

what's in the probation report.

3

Q

This is just a synopsis of

Well, I have to work off the thumbnails.

Even though

4

they have been superceded that's all I have.

5

probation report but I don't have this -- the superceding

6

narrative that you would call it.

7

I have the

And the first thing I want to ask you about that,

8

and I know you have them segregated out as a handy little

9

package for yourself, I've done the same but the Court

10

hasn't.

11

that means nothing to you I don't want you to be distracted

12

by it.

13

So I'm going to refer to them by a document number

But this is Exhibit Triple Y, and it's page 001, and

14

the nomenclature that's used in this in the lower right-hand

15

corner is "Thumb 0013," and that's the thumbnail sketch for Case

16

Number 17.

17

Do you have the thumbnail in front of you?

18

A

I do.

19

Q

At the very top on the first lines centered is what

20

appears to be a date, October 31st, '08.

21

What is the significance --

22

A

Wait.

I'm sorry.

23

Q

No, 17.

24

A

Yeah, 17.

25

Q

Yes.

We are on Case 17?

You don't have --

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 460

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

7/3/82 is the date I have of the offense.

2

Q

No, no.

1755

3
4

Not the date of the offense.

At the very top almost in the margin, almost like
it's the title of the document so to speak?

5

A

Oh, I'm sorry.

6

Q

By a student?

7

A

Yes.

8

Q

Okay.

9

That's the date it was coded.

So if I went and looked at the state of the

protocol on that date -- you described earlier how this is sort

10

of an organic document that was regularly, repeatedly

11

supplemented with new materials -- if the supplementing

12

materials are all dated I'll be able to know from that reference

13

what the protocol looked like on the day that it was used to

14

make this coding decision; is that correct?

15

A

Yes.

And I will advise you again that the coding --

16

the thumbnail sketch is not our judgment of the authority of

17

coding in this case.

18

Q

19

means.

I just want to know what that date

And remind me:

20

I understand.

Is 10/31/08, is that pretty early

21

in the coding process, toward the middle or toward the very

22

end of it?

23

A

This is fairly early on.

24

Q

Okay.

25

It started in August '08.

Now, my question is really very simple, and I

promise to keep my promise.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 461

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

1756

Can you tell me what it is about this case that
makes it death eligible?
A

Yes.

There was M1 liability that would arise from

4

either a premeditation and deliberation or the presence of

5

torture.

6

There was also the presence of the torture, special

7

circumstance, based on the fact that this victim was held

8

down and attacked by the victim, stabbed 38 times as the

9

victim lay on his back secured there by a co-perpetrator.

10

I also think that even though it is not so coded

11

this is a lying-in-wait case, because the defendant lured the

12

victim to a corridor in the prison.

13

watching and the waiting is ignored in there and then he

14

attacked him.

15
16
17
18

And that's -- the

So I think it's supported by both the torture and the
lying-in-wait special circumstance.
Q

Do you have any factual material in connection with

this case other than the probation report?

19

A

No.

20

Q

And it's your understanding that a second perpetrator

21

was involved in this melee?

22

A

It says "where another inmate held the victim down" --

23

Q

That's in the probation report?

24

A

Yes.

25

I don't know where it would have come from

except there.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 462

1757

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

(Pause in proceedings.)

2
3

MR. LAURENCE:

In the interest of time, can I suggest

it's on page five at the bottom of the probation report?

4

THE WITNESS:

Yes.

There it is, Counselor, the last

5

couple of sentences there.

That's where he was lured to a

6

portion -- that's the lying-in-wait component, and that the

7

other inmate held him down.

8

BY MR. MATTHIAS:

9

Q

And that establishes torture?

10

A

That is not what I said.

11

Q

That was the question.

12

A

What establishes the torture is that with a man held

I will say it again.

13

down on the ground, the victim stabbed him 38 times, the upper

14

body with multiple wounds, and making statements he indicated he

15

hated his guts while he was on the ground, those are the factors

16

that make it death eligible.

17

And they are supported by a case called Martin,

18

M-A-R-T-I-N, a 2000 Westlaw 22481524, where there were

19

similar situations where there were 40 stab wounds, and

20

another case called Chatman, C-H-A-T-M-A-N.

21

involved 51 -- sorry -- 51 stab wounds.

22

It was similarly

So those cases lead me to believe that had this case

23

been charged capitally and he was found guilty of M1 with a

24

special circumstance that the Georgia Court would have sustained

25

that finding.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 463

1758

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

That Georgia --

2

A

I'm sorry.

3
4

The California Court.

The California

Court would have sustained the finding.
Q

Understood.

If you would look at the section of the

5

thumbnail sketch that is called Section One.

6

coding in there and I want to make sure I understand it.

7
8

There's a lot of

But rather than have you go through it meticulously
identifying every coding entry, let me just ask you this.

9

In gross, do these entries confirm that the coder

10

believed this was not a death-eligible case and that it got

11

changed?

12

A

Yes.

13

Q

And it got changed in that cleaning process that you

14

described earlier this morning?

15

A

Yes.

16

Q

And that is reflected in that superseding narrative

17

that I haven't seen?

18

A

Superseding narrative.

19

Q

You said that the -- occasionally the thumbnails

20

contained errors and that you got together with your group of

21

five students --

22

A

Oh, I beg your pardon.

Now I understand --

23

Q

-- and you reviewed them and generated another

24

document similar to but different from the thumbnail sketch

25

which you called a narrative.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 464

1759

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yes, it is.

2

Q

And that is the report -- that is the document that

3

explains perhaps in greater detail or at least evinces the

4

so-called correction from non-death-eligible status to

5

death-eligible status?

6
7

A

So does this document, the spreadsheet.

If you look

at the spreadsheet --

8

Q

I understand that.

9

A

Very well.

10

Q

That's how I called it to your attention.

11

18 right there.

It says "torture."

I see the

I got it.

12

A

Okay.

13

Q

Does the narrative explain the rationale for that

14

coding, that corrected coding, if you will?

15

A

It just recites the facts and provides authority.

16

Q

So it recites additional facts?

17

A

I would not say they were really additional facts.

18

adds the fact that he was lured into a corridor, which really

19

doesn't have to do with the torture.

20

lying in wait.

21

bit more information.

22

It has to do with the

And that he was lying on his back -- a little
Essentially not different.

Basically, we came down to a difference of opinion

23

about whether hitting the person multiple times that -- we

24

have down here it was 38 times.

25

it torture.

That's what makes

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 465

It

1760

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

Next case, number 79.

2

A

Yeah.

3
4

THE COURT:

Let's plan to take a break after this next

one.

5
6

Okay.

MR. MATTHIAS:

Sure.

BY MR. MATTHIAS:

7

Q

Now, this is another case that got coded as a torture.

8

A

Yes.

9

Q

And the materials that I received from HCRC show that

10

no thumbnail was ever prepared.

11
12

No thumbnail ever prepared.

I assume a narrative was during the cleaning
process?

13

A

Yes.

14

Q

And it addresses the coding issues?

15

A

Yeah.

16

spreadsheet.

17

Q

And the correct coding is stated in the

And because I don't have the thumbnail, how did the

18

student who took the initial cut at this case code it?

19

torture under --

20

A

21
22

As a

I can't tell you how it was originally coded.
You know, we had 1900 cases.

Sometimes the

thumbnails were mislaid.

23

Q

Okay.

24

A

Every case had one created, but sometimes they got

25

away from us.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 466

1761

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3
4

Q

Okay.

Is it not reflected, then, in the narrative,

which I guess you do have?
A

Oh, yes.

In the narrative.

It's based on the

probation report.

5

Q

But that won't reflect how it was initially coded?

6

A

No.

7

Q

It also reflects the final coding, which is also

8

reflected in the spreadsheet?

9

A

That's right.

10

Q

Can you tell me what -- again, you don't have to make

11

reference to a legal provision.

12

I got it.

It's torture.

My question is factual.

13

A

Okay.

14

Q

What facts in this -- in the material before you make

15
16

this a torture?
A

Okay.

The victim was bound, number one; had multiple

17

wounds of different types.

18

the torture special under the law.

19

Those are the factors that implicate
And manual strangulation.

Those all add up because of the different

20

binding -- the multiple wounds, the different parts of the

21

body, rib fractures, hemorrhages, contusions, abrasions,

22

blunt-force injury.

23

So it's the number and the different types and the

24

binding of the person and the method of killing that makes

25

this a clear torture case in my judgment.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 467

1762

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

MR. MATTHIAS:

2

THE COURT:

Okay.

Your Honor.

We are going to take a 20-minute recess.

3

I want you to think -- when I get back we need to talk.

4

normally stay as late as it takes, but because I'm not mobile I

5

have a driver who's going to take me home and is going to pick

6

me up at five, so we have that time.

7

means when I get back.

8

MR. MATTHIAS:

Okay.

I would

Let's talk about what that

Thank you, your Honor.

9

(Whereupon there was a recess in the

10

proceedings from 3:32 P.M. until 3:53 P.M.)

11

THE CLERK:

The Court is back in session.

12

THE COURT:

Okay.

13

MR. MATTHIAS:

Had a chance to talk?

Yeah, we did, your Honor.

I think we

14

are almost certainly going to go to just before you have to

15

leave.

16

But Mr. Laurence and I discussed the possibility of

17

picking this up tomorrow, but we don't know about your

18

schedule.

19

Laurence probably wants to explain that relate to Professor

20

Baldus's situation.

21
22

There are some extenuating circumstances that Mr.

THE COURT:

Yeah.

tomorrow.

23

MR. LAURENCE:

24

THE COURT:

25

I don't know if I can get a driver

I'm sure we can find --

Well, can we -- and can we get a court

reporter?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 468

1763

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

THE CLERK:

I don't know, your Honor.

I don't even

2

know if the Court -- there's no security on this floor probably

3

tomorrow either.

I mean, it's Saturday.

4

THE COURT:

Yeah.

5

Is Michael here?

Well, let's go on.
Let's go on.

I think maybe our

6

best bet is to just ask my driver to wait tonight and go as

7

long as we need to.

8

that I think he'll do that.

9
10

MR. MATTHIAS:

THE COURT:
your case.

MR. MATTHIAS:

14

THE COURT:

15

17

I'll try to pick up the pace a little

Don't cut off anything that's important to

13

16

Let's go on.

bit.

11
12

This is new to me, and it's a service

Thanks.

Let's go on.

CROSS-EXAMINATION CONTINUED
BY MR. MATTHIAS:
Q

140 is the next case.

This was coded originally by

18

the student, if I'm reading this exactly, and I think I am now

19

since you've explained it to me, with no special circumstances,

20

but in the final analysis at some point during that cleaning

21

process presumably it became a lying in wait.

22

A

Yeah.

23

Q

So my question is as always, what is the evidence that

24
25

supports lying in wait?
A

All right.

The defendant and the victim's wife had

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 469

1764

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

separated, and she was coming back over to his home, and the

2

victim, a non-decedent victim, arrived at defendant's home.

3

Defendant said he had said he had seen the victim

4

and the non-decedent victim drive by the house three or four

5

times.

6

That's when the watching and waiting began.
This was a lying-in-wait case.

He met the victim,

7

the defendant, the non-decedent victim on the porch, invited

8

them in into his house, and when they were in the entranceway

9

talking he pulled out a weapon and attacked them.

10

To me that's a clear lying-in-wait scenario.

And

11

that's the way it's properly coded and that's the way it's

12

coded in the database new.

13

Q

Number 505, if you would.

14

A

Number 505. (Stricken from the record.)

15

Q

Excuse me.

16

A

Oh.

17

Q

Okay.

18

A

I beg your pardon.

19
20

We are actually not saying names.

I probably should have mentioned that.

THE COURT:

We will strike that from the record.

BY MR. MATTHIAS:

21

Q

Just go by the number.

22

A

Very well.

23
24
25

Very well.

505 is another torture case, and that's the way
it's coded in the database.
Here is where the defendant and co-perpetrator
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 470

1765

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

found a thoroughly intoxicated man under a highway underpass.

2

They inflicted on him multiple injuries, fractured mid

3

sternum, hemorrhaging of different areas of the body

4

suggesting external trauma, severe congestion.

5

with karate-style attacks, knocking him into the ground, and

6

then here's the payoff.

7

They beat him

They -- co-perp tied the victim's hands, and

8

together they placed a rope around his neck, and the

9

defendant and the co-perp pulled the rope in different

10

directions, strangling him to death all the while the

11

defendant laughing real hard like he really enjoyed it,

12

according to the probation report.

13
14

That's the basis for torture as a predicate for M1
and also support for the special circumstance.

15

Q

Next one is 507.

16

A

507 is another torture case.

17

Q

This was one, just to recite for the record, in which

18

your coder found no special circumstance, as I read this.

19

that again was changed on further review during the cleaning

20

process presumably.

21

A

Yeah.

22

Q

And my question is, as it always is, what is the

23
24
25

evidence in support of death eligibility here?
A

Okay.

This is 18 -- special circumstance 18.

This has to do with the killing of a very young
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 471

But

1766

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

child.

2

help sought.

3

Multiple injuries, different types of injuries, no

And the behavior was consistent with -- in the

4

minds of the coroner "consistent with child abuse," and the

5

head injury would have been amenable to prompt medical

6

treatment, but the delay in seeking it was a major factor in

7

irreversible brain damage, and let me tell you what the

8

injuries were.

9

"Fracture of the right parietal

10

region; fracture of left radius; fracture

11

of the left distal ulna; fracture of

12

metatarsus; possible fracture of right

13

femur; rotation force injuries."

14

And even though one might view this as not

15

establishing intent to kill, there is authority, and I can

16

give you the citation if you would like, Counselor --

17

Q

Actually, I'm just interested in the facts.

18

A

Very well.

That's the basis of it.

19

of it.

20

Q

Thank you.

1178.

21

A

Very well.

22

Q

This is a case -- just to give a background on it this

That's the basis

23

was coded originally by your student coders as a special

24

circumstances case and therefore death eligible by virtue of a

25

robbery, and upon cleaning the robbery was deleted and lying in
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 472

BALDUS - CROSS-EXAMINATION/MATTHIAS

1767

1

wait was found in its stead, if I'm reading the spreadsheet

2

correctly and the thumbnail correctly.

3

A

You are.

4

Q

Thank you.

5

A

And here's the reason --

6

Q

So what is the basis for the laying in wait?

7

A

The defendant stated that he saw the victim go to her

8

car -- that's when the watching and waiting began -- opened the

9

trunk, close the trunk and then gets into the car.

10

He then approached her and entered the car and

11

assaulted her, and the victim fought the defendant and he

12

stabbed her twice.

13
14
15
16

So there was the watching and the waiting, and it
put her in a vulnerable position at which time he killed her.
Q

1682.

This is a case in which there are more special

circumstances found than you can shake a stick at.

17

Under the Carlos Window law this got coded as

18

financial gain, multiple murder, lying in wait and robbery

19

and the same under 2008 law plus carjacking, which was not in

20

effect under the -- in the Carlos Window, and driveby, which

21

likewise was not in effect during the driveby (sic).

22
23
24
25

So let's start off first with financial gain.
the evidence of financial gain?
A

There is none.

That's a conflation.

There are five errors in coding in this case,
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 473

What is

BALDUS - CROSS-EXAMINATION/MATTHIAS

1768

1

however it's still death eligible because in spite of those

2

five errors it's factually lying in wait, and I can explain

3

to you the errors if you would like.

4
5

Q

Well, I think I know them.

Whoever coded this got

confused as to who the victims were.

6

A

Yes.

7

Q

And the entire scenario involving the robbery, which

8

wouldn't support a financial gain special anyway, but it doesn't

9

matter.

It's the wrong victim.

The person misread the report.

10

A

That's right.

11

Q

But you say there is lying in wait?

12

A

Yes.

13

Q

And so everything falls out because the coder was

14

looking at the wrong victim.

15

There's a second victim who didn't

die.

16

A

That's right.

17

Q

So I think I know all that.

18
19

But you are saying it's still a lying in wait, so
why don't you tell us why it's still a lying in wait?

20

What evidence from the probation report -- by the

21

way, I probably should have asked this before, but in every

22

case we've been talking about so far the entirety of the

23

coding decision was made on the basis of the probation report

24

--

25

A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 474

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

Q

-- correct?

1769

None of these were the subject of

supplemental materials?

3

A

That's right.

4

Q

Okay.

5

So I'll try to remember to ask that about the

remaining cases.

6

A

Yeah.

7

Q

But you have the floor and it's lying in wait.

8

A

The lying in wait is the defendant shot the victim in

9

the chest, killing the victim outside a bar and fled the scene.

10

Here's an example of where the facts are

11

insufficient to tell you whether it's lying in wait.

12

However, the additional facts from the appellate opinion in

13

this case provide the following:

14

"Defendant waited outside the bar for

15

approximately 10 minutes and then shot the

16

victim in the chest from a distance of

17

two feet as he left the bar."

18

A classic lying-in-wait case.

19

facts were not in the probation report.

20

terms of consulting additional evidence the case, we believe,

21

is still death eligible and should remain in the study.

22

Q

To be sure those
But nevertheless, in

I'm just curious, if the victim had decided to leave

23

the bar nine minutes earlier would this not be a lying in wait?

24

I mean, how long the guy is outside has got as much to do with

25

how long it takes the guy inside to leave as it does have to do
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 475

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1770

with how long the guy outside wants to wait.

2

But you've explained why it's lying in wait, and I

3

promised and have now violated my promise not to argue, so I

4

withdraw my last question.

5

I understand your understanding of lying in wait.

6

Let's look at 1742.

7

A

Yeah.

1742 is a --

8

Q

Financial gain under both law --

9

A

That's right.

10

Q

And then more recent law you threw in the gang.

11

A

That's right.

12

Q

And let's take financial gain first.

13

A

Financial gain has to do with the rivalry between gang

The --

14

members and seeking turf, and that that has -- we can construe

15

that as a financial -- financial gain.

However, the --

16

Q

The turf is the gain?

17

A

Yeah.

18

Q

That has financial value?

19

A

Yeah.

20

Q

I want to understand.

21

A

However, I'll have to say on re-examination of this

22

case I think it's a stronger lying-in-wait case than it is a

23

financial-gain case for the following reason.

24
25

Q

Well, I didn't know you were going to say that, but go

ahead and tell me why it's death eligible as a lying in wait?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 476

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yeah.

2

1771

Because it says:

"The 19-year-old defendant along with

3

fellow gang members participated in an

4

ambush" -- that's on page five of the

5

probation report -- "of rival gang members

6

and the victim was exposed and had no

7

chance to escape."

8

And it says that "the defendant

9

stated that his job was to wait for

10

victims at a location away from the front

11

lawn and to shoot the victims if they ran

12

his way," which he apparently did.

13

So for that reason it would be a lying-in-wait

14

case.

15

would code the case.

16

Q

If I were going to recode this myself that's the way I

And that somehow evaded the attention of the initial

17

coder as well as the coding -- the code cleaning process, and it

18

was sometime between when Mr. Laurence told you I'd be asking

19

you about this case and today that you decided that it's a

20

lying-in-wait?

21

A

Yes.

There are other factors in here as well.

I

22

think there's sufficient support for the pecuniary gain, given

23

the competition for turf on the part of the gangs, and also

24

under 2008 I think 22 gang killing, a gang murder is present.

25

Q

Actually, I'm not asking you anything about 2008 when
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 477

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1772

there's a difference.

2

A

Oh, all right.

3

Q

Mr. Ashmus was a Carlos Window defendant, as you noted

4

in your declaration, so the scope of 2008 law, while maybe

5

interesting as an abstraction and as an academic matter for you,

6

it's irrelevant to the disposition of these proceedings because

7

that's not the law under which Mr. Ashmus was convicted and --

8

A

I understand.

9

Q

Okay.

10

A

Okay.

11

Q

I think you know the next one because you have the

12

I understand.

list.

13

A

2217.

14

Q

Exactly.

15

Now, this is a case in which the -- this

case was charged as a second-degree murder, was it not?

16

A

Yes.

17

Q

A slightly unusual quality about it in that regard.

18

A

Yes.

19

Q

But your coder decided that it's a clear lying in

20

wait; is that right?

21

A

Yes.

22

Q

And the coder also found the jury nullification

23

applies in this situation.

24

A

That was an error.

25

Q

That was an error.

There is no nullification?

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 478

1773

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

No.

2

Q

So the CFF was simply not even applicable --

3

A

That's right.

4

Q

-- rather than an applicable CFF on murder one without

5

Because the case was charged M2 and found M2.

specials, which would be subject to nullification?

6

A

That's right.

7

Q

Tell us why it's lying in wait.

8

A

Here we have a situation where the defendant and the

9

victim were quarreling.

10

They were a husband and wife pair.

Defendant left the group, went into the house, and

11

it was during a barbecue, and it continued without the

12

defendant.

13

He spent a good amount of time alone, and he was

14

thinking, and he obtained a weapon -- a rifle, I think it

15

was.

Yes, a rifle.

16

And the wife went in the house to drop off

17

leftovers, apparently, and he confronted her with the weapon,

18

and she ran out of the house and he gunned her down outside

19

the house -- classic lying in wait for a vulnerable victim to

20

appear, which is what happened in this case.

21

Q

Was it the defendant running out?

22

A

No.

23
24
25

the defendant?
Q

No.

It was the victim running out.

Did I say

Pardon me.

I might have misheard.

I just want to know, what is

the -- what fact in the particular establishes the lying in
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 479

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

wait?

2

1774

want to know what makes it lying in wait.

3

A

You kind of gave a narrative of what transpired, but I

Okay.

It's the fact that the defendant left the

4

interaction that they were having at the barbecue, that's when

5

the watching and waiting began, and he went inside and obtained

6

a weapon and waited for his wife to enter the house.

7

When she entered he assaulted her with a weapon and

8

she turned and fled, and then he pursued her and gunned her

9

down.

10

Q

5013.

This is a torture, torture with a gang, which

11

under '08 law, which we are not interested in, and this does

12

involve jury nullification because the jury came back with

13

murder two; correct?

14

A

Yes, that's right.

15

Q

And your coder determined that that was a case of jury

16

nullification, and the test for jury nullification again was

17

whether the jury ignored overwhelming evidence?

18

Is that the way it's phrased?

19

A

Yes.

20

Q

I don't want to put words in your mouth.

21

A

Yes.

22

Q

Ignored overwhelming evidence establishing a special

That's right.

23

circumstance and death eligibility and with an inexplicable

24

display of mercy convicted him only of M2.

25

And why is this torture?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 480

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

A

1775

Because the defendant and his co-perpetrators attacked

and killed the victim in a brutal manner.

3

One of the co-perpetrators hit the victim with a

4

baseball bat three to five times.

5

back of the head with a shovel, and by this time the victim

6

was motionless on the ground and the defendant and another

7

co-perpetrator were punching and kicking the victim on the

8

ground, and the victim died of massive head trauma.

9

Another one hit him in the

I believe that that would be sufficient to

10

establish torture for purposes of establishing first-degree

11

murder.

12

In addition, he was liable for first-degree murder

13

as an aider or abettor, and also that this killing was a

14

natural and probable consequence of the conspiracy to

15

confront this other gang.

16

Q

That arguably goes to M1 and the gang.

17

A

That's right.

18

Q

My question was focused on the other matter.

19

A

Oh, the torture?

20

Q

The torture.

21

A

Yes.

It was the use of multiple weapons inflicted on

22

a motionless victim on the ground and injuring him in a

23

multitude of parts of his body that killed him.

24
25

That's my opinion of the predicate of the torture.
Q

I understand your understanding of the torture.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 481

1776

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2

If you would look -- we are done with all of those by
the way.

That takes care of the 10?

3

A

Yes.

4

Q

If you would just turn back to your declaration, and

5

I'm going to ask you to look at Part Three of the last table

6

that we were examining together.

7

A

Was that Table Three?

8

Q

I think it was Table Three.

9

A

Yeah.

10

Q

I'm sorry.

11
12

Okay.
I'm sorry.

I'm actually asking you about -- yes.
about Table Three.

13

I was asking

I'm sorry.

That number, line one in death-eligibility rate, 37.8,

14

everything on this chart actually, not just California, every

15

statistical entry on this chart is derived from unpublished data

16

documented by somebody other than yourself; is that correct?

17

A

Correct.

18

Q

Including necessarily the information dealing with

19
20
21

California on line one?
A

24
25

Wait a minute.

Wait a minute.

Just one minute.

I would like to amend that.

22
23

No.

If you look at footnote one, these data came from a
published article published in the Texas Law Review.
Q

Well, I know some of it does, but in footnote one, the

very last sentence says:
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 482

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

1777

"Professor Fagan and his colleagues

2

generously shared their unpublished

3

state-by-state finings for use in this

4

declaration."

5

A

That's true.

6

Q

That's what I was getting at.

7

you up.

8

I'm not trying to trip

I just want to establish that it is unpublished data.
Needless to say you have not validated it?

9

A

No.

10

Q

Can you tell me that that 37.8 -- I know from reading

11

all of your other tables that that is the product of a numerator

12

over a denominator.

13
14

Can you tell me what the numerator and the
denominator were that produced 37.8?

15

A

No.

16

Q

Only Professor Fagan et al. would know that?

17

A

Yeah.

18

Q

You can confirm for me, though, because you do know

19

something about their methodology, that some portion of that

20

37.8 percent includes cases in which the chance of a death

21

verdict is zero.

22

A

Their population is murder and non-negligent homicide.

23

Sorry -- non-negligent manslaughter.

24

manslaughter.

25

Q

It's murder, non-negligent

That's their denominator.

And we will actually get to the -- these are all
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 483

1778

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3
4
5

supplemental homicide report cases data?
A

That's right.

And that's the population of cases that

were embraced in the supplemental homicide report.
Q

Right.

Well, actually, we are going to spend a few

moments on that in a minute.

6

If you would, please turn to Table Four.

7

A

(Complies.)

8

Q

Actually, we can look at Parts One and Two

9

simultaneously and speed things up here.

10
11

This is actually all the same information; correct?
It's just arranged a little differently.

12

A

Correct.

13

Q

In part one you've batched the states by region?

14

A

Yes.

15

Q

What is the relevance of that?

16

The implication, I take it, from this is that a

17

certain death-eligibility rate would be very problematic if

18

it were in one corner of the country but somehow it's not

19

anything we should worry about if it were some other part of

20

the country.

21

And I don't know why you chose to sort it in two

22

different ways, so why don't you explain the sorting by

23

geography?

24

A

25

The sorting by geography has no special significance.

It's just to give the reader a flavor for the data.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 484

Most people

1779

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

when they look at information of that type nationwide think

2

about it in terms of regions.

3

Q

Okay.

4

A

That's the only reason.

5
6
7

So -It has no particular bearing

on the issue of death-eligibility rates in any of these states.
Q

Okay.

So part two is exactly the same data arranged

from high to low -- or low to high death-eligibility rates.

8

A

Yeah.

9

Q

Now, again, is the point here that California, which

10

is down at the bottom because it's 37.8, should really try to be

11

a lot more like Alabama, which is a 13.1?

12

Is that the point of arranging it in ascending

13

order?

14

A

It's not what it should or shouldn't do.

It's just

15

explaining factually where it fits in on this distribution,

16

which is better demonstrated actually on Figure One.

17

you the picture much more clearly.

18

Q

19

Yeah.

That gives

We will turn to that in a moment, actually.

Actually, why don't we turn to it right now?

20

A

(Complies.)

21

Q

This is exactly the same data in yet a third form; is

22

that right?

23

A

That's right.

24

Q

And the point here is the recurring frequency of

25

similar death-eligibility rates, and the real eye-catching
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 485

BALDUS - CROSS-EXAMINATION/MATTHIAS

1780

1

feature of this graph is the 22-percent rate, where we see the

2

frequency sores up to five, because five states are in or about

3

the neighborhood of a -- of a death-eligibility rate down around

4

22 percent?

5

A

Yes.

6

Q

Those five happen to correspond to Texas, Maryland,

7

Ohio, Missouri, South Carolina.

8

A

I have to verify that.

I take your word for it.

9

Q

I don't think I'm wrong, so -- but that's the point?

10

A

I'll stipulate to that.

11

Q

There's a cluster of -- that's what this is

12

illustrating, that there's a high concentration of recurring

13

frequency to the tune of five.

14

Whereas much, much higher and much, much lower from

15

that 22 most recurrent frequency to the far left we see

16

Alabama, and to the far right we see -- well, New Hampshire

17

and even further to the right California.

18

And the point here is to establish that Alabama and

19

California are what can be referred to as "statistical

20

outliers," which is a term of art, although there's a careful

21

description of this in your declaration which explains that

22

they are not actually outliers because they don't quite meet

23

the definition of it but they are awfully close.

24

A

Yes.

25

Q

But they are short of being a statistical outlier.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 486

1781

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

A

Professor Woodworth can give you more in his

cross-examination.
Q

And I would ask him about that, except for the fact

4

that I want know to know whether you think being at or near

5

outlier status is in and of itself of any constitutional

6

significance in the sense that that was something Furman was

7

concerned with?

8

A

There was no comparative analysis in Furman.

9

Q

Okay.

And now I want to shift your attention finally

10

to that portion of your declaration that begins on page 27 and

11

then back to our Venn diagram.

12

The first half of the declaration as I understand

13

it you compared the middle circle to the outer circle.

Now

14

you are comparing the middle circle to the smallest, interior

15

circle that represents the universe -- that's probably the

16

wrong word -- the population --

17

A

Yes.

18

Q

-- of -- of people who actually were sentenced to

19

death.

20

So we have the small circle, a bigger circle, and

21

now even a bigger circle, and we are now doing the second

22

phase that you described of comparing that middle circle to

23

the small circle; is that right?

24
25

A

I characterize it as -- I don't use the Venn diagram

terminology in this paper.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 487

1782

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

What I talk about are, what are the charging and

2

sentencing rates among death-eligible cases?

3

issue presented by Figure Two.

4

Q

5

That's the

I think I understand.
Now, do you have any understanding at all of what

6

California prosecutors take into consideration when making a

7

capital charging decision?

8
9

A

I've never interviewed any of them or read any

empirical studies about them.

10

I assume they behave as prosectors do around the

11

country.

12

the specials, and the evidence in murder one liability.

13

Q

They look at the evidence, look at the evidence in

And when they look at the evidence are they looking

14

for legally-sufficient evidence or some other point along the

15

spectrum of strength of evidence?

16

A

They are looking for evidence that they think is

17

sufficient to support a conviction and a death sentence, if they

18

think death is appropriate in that case regardless of what the

19

facts are.

20

Q

Well, the reason I ask you about your knowledge of

21

California prosecutors and what they consider in the capital

22

charging decision, the reason I ask that is because I know from

23

your article that you did undertake to inform yourself what

24

Nebraska prosecutors took into consideration in making their

25

charging decisions, and among the things you identified were
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 488

1783

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

that the prosecutors would consider how likely it is that the

2

penalty trial will result in a death verdict.

3

You also learned that Nebraska prosecutors consider

4

whether the interests of justice would be served by a

5

position of a death sentence, and you learned that

6

prosecutors even consider things such as the opinions of the

7

victim's family to be part of the constellation of

8

considerations that will affect the charging decision.

9

And do you have any reason to suppose that

10

prosecutors in California consider, or fail to consider those

11

very same things?

12

A

No.

Those are based upon, if I remember correctly, on

13

interviews that we had with prosecutors.

14

sound like the kinds of considerations that prosectors use

15

nationwide.

16

Q

17

I'm sure you are right.

But I assume -- they

I'm sure you are right.

But declining to pursue a capital-eligible case, as

18

you define it, in the interest of justice impairs under your

19

analysis the state's death-sentencing rate.

20

constitutionally suspect to the extent that you read Furman,

21

saying that "infrequent death penalty verdicts are

22

constitutionally suspect."

23

A

It makes it

I just prefer to talk about the facts rather than the

24

legal implications if you don't mind.

25

What it does is it

reduces the death-sentencing rate.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 489

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

1784

Now, what the legal implications are for that,
that's not my department.
Q

4

We will come back to that, too.
What techniques, if any, did you use for controlling

5

for the influence of other variables which affect the

6

feasibility and propriety of pursuing the case capitally?

7

A

None.

8

Q

None, including strength of evidence --

9

A

No.

10

Q

But again, you do have -- at your disposal you have

11
12

techniques for taking those into consideration?
A

13
14
15

That was not the purpose of the enterprise.

To replicate this controlling for those factors?
I'd like you to cite me the article that does that.

I'd like to see it.
Q

No.

What I asked was that you have -- there are

16

devices available to characterize cases as relatively strong or

17

weak, and you did it in McCleskey and you've done it elsewhere.

18
19
20
21

A

That's true, but it wouldn't give you a picture of the

flow of cases throughout the entire system.
Q

It would give you a different picture with a slightly

different question asked, but you could do it.

22

You could, for example, if you wanted to know the

23

extent to which the outcomes that you've documented here in

24

your 36-page declaration, you wanted to know the extent to

25

which they were influenced by perfectly legitimate
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 490

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

prosecutorial discretion, you could have brought to bear

2

1785

certain techniques on that question.

3

A

What you would have to do is create a scale that takes

4

into account the various factors that you mentioned that were

5

present in the cases, and then you would create a scale of the

6

cases that had, say, for example, one and then two or three or

7

four of five of those, or create an index based on a

8

multivariate analysis of some sort.

You could do that.

9

Q

You've done that?

10

A

No, I haven't done that with respect to

11

death-sentencing rates on a flowchart like this.

12

What we've done is looked at the death-sentencing

13

rates overall.

14

and -- 5A among cases characterized by their culpability.

15

What we've done is looked at Table -- box 5A

But those are culpability.

They aren't those

16

factors that you are describing.

17

complicated projects that you are envisioning.

18

Q

These are enormously

Well, a challenge to a state's death penalty statute

19

is an awfully serious matter, so I wouldn't be surprised that

20

the study of it might entail some complexity.

21

The point is, though, that at one point you did have a

22

plan to assess how specific characteristics influenced charging

23

and sentencing decisions and you abandoned that; is that

24

correct?

25

A

I don't -- I don't recall that.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 491

1786

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

2

Well, if you would take a look at the protocol.
And again, when I say "protocol," I mean that

3

document that's called a protocol in the lower right-hand

4

corner with the pagination system.

5

And turn to page -- I'm sorry?

6

A

Let me say this, Counselor.

If we had contemplated

7

that at one time we abandoned that effort.

We just didn't

8

simply have the resources to do it if we did contemplate it.

9

And any time I do a study I'd like to do that if I

10

could, but if we didn't do it here that's why we didn't do

11

it.

Simple as that.

12
13

I mean, if you want me to look at your exhibit,
I'll be glad to do it.

That's the explanation for it.

14

Q

Sure.

It's Protocol 0015.

15

A

Let me see here.

Perhaps you could just read to me

16

what it says because I can't put my hands on it.

17

for that.

18

Q

Let's try reading it.

I apologize

It's actually just -- the

19

paragraph that I have in mind is two sentences, so I think that

20

will work:

21

"The second goal of the study is to

22

document the flow of cases through the

23

California capital charging and sentencing

24

system."

25

assess how specific characteristics

Period.

"In this regard it will

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 492

1787

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

influence charging and sentencing

2

decisions."

3

And at the end of day you did no such thing.

4

A

That's right.

5

Q

Do you think that had you done this it would shed

6

light on the validity of the constitutional challenge that is

7

before this Court?

8
9
10

A

I don't know, Counselor, because I don't know what the

results would have been.

Had we had the data to do it I would

like to have done it.

11

But this was way back in this early stages of the

12

planning of this, and that was before the data collection

13

instrument was created, and we just abandoned that plan over

14

time.

15
16

Q

If you would, please, turn to Figure Two.

This is on

page 28.

17

A

Yeah.

18

Q

Now, I'm looking at box 3B and -- 5A and 5B, actually,

19

which are the subject of the changes you made in the latest

20

version of your declaration --

21

A

Yes.

22

Q

-- provided yesterday.

23

changed there.

24

And I noticed some numbers got

reflected in 3B.

25

Basically 5A got changed in light of what is

Is that fair?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 493

1788

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

Yes.

2

Q

Okay.

Now, let's just look at 5A, where you come up

3

with the 4.6, and this is a death-sentencing rate as contrasted

4

with a death-eligibility rate, which we talked about at greater

5

length earlier.

6

A

Yes.

7

Q

That is calculated by 705 over 15,394 in its revised

8

form.

It used to be 16,007.

9

Today it's 15,394, producing 4.6;

correct?

10

A

Yes.

11

Q

Now, of the 15,394, can you tell me how many of those

12

cases -- in how many of those cases was the chance of a death

13

verdict zero?

14

A

No.

15

Q

But you can estimate.

16

A

Well, what I can tell you is the following.

You can come close.
I can

17

estimate a death-sentencing rate among cases where the court

18

found a special circumstance present, where it was admitted an

19

M1 liability was established.

I can estimate that.

20

Q

Okay.

21

A

And that sentencing rate would be 21.

22

Q

And that's -- what fraction -- pardon me.

23

numerator or what --

24

A

705 over 3404.

25

Q

And 3404 is the number of -Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 494

What

1789

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

A

That's an adjusted figure.

2

Q

No.

3

A

What I'm saying is that you'll notice in the footnote

4

You tell me.

Go ahead.

I'm sorry.

Adjusted figure -- go ahead.

here it says:

5

"We estimated that approximately

6

nine percent of the cases of the special

7

circumstance resulted in a term of years,

8

and those cases were deleted from stage

9

three."

10

When I computed -- made adjustments for that

11

nine percent and added them back in, I get a denominator of

12

3404 divided by 705.

13
14

Q

You are saying that nine percent of the special

circumstances cases where a special circumstance was found?

15

A

Yes.

16

Q

Or admitted?

17

A

Resulted in a term of years.

18

Q

Instead of LWOP.

19

A

Or death, yes.

20

Q

Nine percent of the people found in special

21
22

Instead of LWOP or death.

circumstances avoided an LWOP or death.
A

Yes.

That's my estimate.

I have to tell you, this

23

was not the principal focus of our work.

That's why I omitted

24

that, but I thought you might be interested in that since that's

25

what you were focusing on.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 495

1790

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

I'm very interested.

I'm imagining how it's possible

2

because of the proscribed sentence under California law for

3

special circumstance murder is LWOP or death in the judgment of

4

the jury.

5

A

6

No.

I don't believe it is, sir.

The proscribed sentence when there's a special

7

found in M1 and the government waives the death penalty, then

8

it can be sentenced by the court to a term of years.

9

understanding of the law.

It's my

Maybe I have it wrong.

10

Q

With the LWOP in tact.

11

A

No.

12

Q

Pardon me.

13

A

Maybe I'm wrong in the law, but that's how I was

14
15

With the special circumstances intact?

advised by counsel, but that happens.
Q

16
17

Without an LWOP.

I would never say you are wrong on that.
Now, back to -- and that's not really the point I

was asking about.

18

I'm looking at the denominator of 15,394.

19

This

includes a known number of voluntary manslaughters?

20

A

Oh, yes.

21

Q

And if you don't know it off the top of your head

22

that's fine, but we could begin by subtracting them.

23

This goes back to my earlier question.

24

asked you whether of that number, some of that number the

25

chance of a death verdict was zero, and you said, "Yes," but
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 496

I said -- I

1791

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

you couldn't estimate it, but we could get close, and one way

2

to start getting close is to subtract the voluntary

3

manslaughters, the second-degree murders, the first degrees

4

without specials -- we could do all of that.

5

that data.

6

You have all of

And then the fourth element to subtract would be

7

the first degrees with specials in which the prosecution did

8

not seek death, and I know from your declaration that you

9

can't figure that number precisely because your data do not

10

squarely focus on the rate that death-eligible cases advance

11

to a penalty trial.

12

A

Yes.

13

Q

But you have a rough proxy or approximation of that.

14

But we know that it at least has got to be reduced by the first

15

three elements that I just listed for you to get down -- to

16

eliminate cases where the chance of death was zero; right?

17

A

If one wanted to do that.

18

Q

I appreciate that.

19

A

Yes.

20

Q

I'm asking you about things that were not your

21

assignment.

22

A

Okay.

23

Q

Have you ever heard the expression, "the worst of the

24
25

That was not my assignment.

I'm just asking you.

worst"?
A

Yes.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 497

BALDUS - CROSS-EXAMINATION/MATTHIAS

1792

1

Q

In the context of the death penalty?

2

A

Oh, certainly.

3

Q

What does that mean to you?

4

A

That means the worst of the worst are the crimes

5

that -- the homicides that take your breath away in terms of the

6

level of culpability and aggravation.

7

Q

Now, you said earlier that you weren't really here to

8

offer commentary on the legal significance of this statistic or

9

that statistic, but in paragraph 69 of your declaration you do

10

characterize California's death penalty statute as overbroad,

11

which I understood to mean too broad, or broader than it should

12

be or could be or must be or something.

13

I just want you to explain what you mean by

14

overbroad.

15

A

16

Well, I guess overbroad is in comparison to other

jurisdictions, is the easiest way to put it.

17

Q

Okay.

18

A

And it's a legal question of whether it's too broad

19

from a constitutional standpoint.

20

that judgment.

21

Q

I'm not in a position to make

Well, you know, to my ear "overbroad" smacks of

22

constitutional deficiency, but I think you've explained it.

23

You said that during the Carlos Garcia -- in that

24

same paragraph you say that in the Carlos Window period the

25

lying in wait was present 29 percent of the time and it was
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 498

BALDUS - CROSS-EXAMINATION/MATTHIAS

1793

1

the sole special 21 percent of the time, and then you give

2

the numerator, denominator there in each of the instants that

3

yielded that fraction.

4

Do you have enough data in paragraph 69 or

5

otherwise at your disposal to tell me what California's

6

death-sentencing rate would be -- I'm sorry --

7

death-eligibility rate would be if there were no lying in

8

wait?

9

You say that the laying in wait is a major -- makes

10

a major contribution to the over-breadth state of affairs.

11

And my question is, if that's the major

12

contribution, let's take it away, run the numbers again and

13

now tell us what the rate would be.

14

A

I didn't do that, but that could be done.

15

Q

It could be done?

16

A

Certainly.

That means you would reduce -- if you

17

struck the lying in wait special what would happen to the

18

death-eligibility rate?

19

Q

Exactly.

20

A

No, that could be done.

21

Q

But with the data that's in the footnote -- pardon

Sure.

22

me -- in the paragraph right there, is the data sufficient to

23

allow you to do it, or -- I'm not asking you to do it without a

24

calculator, but is this the data that you would use to make that

25

calculation?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 499

BALDUS - CROSS-EXAMINATION/MATTHIAS
1
2
3

A

No.

1794

You would have to go back and look at the whole

database and suppress -- rerun the analysis.
Q

You can't prorate it, knowing that it's -- knowing

4

that the information in parentheses following each of these

5

percentages you can't prorate out a new death-eligibility rate

6

from the data?

7

A

I cannot do it off the top of my head sitting here.

8

Q

No.

9

time in the world?

10

A

11

Woodworth.

12

Q

13
14

Could you do it with a calculator and all the

I don't know.

I'd have to consult with Professor

That's a question for him.

Okay.

All right.

Thanks.

Let me ask you this.

Why don't you look at Table

One again?

15

Thought we left it, huh?

Sorry.

16

A

(Complies.)

17

Q

That combines the number -- we have the number of

18

death-eligible cases, and we know from what you say in paragraph

19

69 that 21 percent of those were lying-in-wait death eligible,

20

that is to say they were death eligible solely because of the

21

lying in wait.

22
23
24
25

So would it be fair to say that that number would be
29 percent smaller?
A

Look, this is not the way you do this analysis off the

top of your head sitting on a witness stand.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 500

1795

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

If we're going to recompute the numbers we need to

2

do it thoroughly, thinking through what's going on, examining

3

the database and consulting with Professor Woodworth.

4

don't do these things off the top of our heads.

5

Professor Woodworth can do it off the top of his head but I

6

can't.

7

Q

Of course we are here for Mr. Ashmus.

We

Maybe

That's the only

8

matter before this Court, and lying in wait has nothing to do

9

with his conviction because that is not the basis on which he

10

was sentenced to death.

11

His specials were murder in the course of rape,

12

murder in the course of sodomy, and murder in the course of a

13

lewd and lascivious act on a child.

14

Can you quantify for us how much those special

15

circumstances contribute to the breadth of California's death

16

penalty statute as you use that term in paragraph 69?

17
18
19

Would that data -- could you extract that data
because that's the data that pertains to Mr. Ashmus?
A

I can tell you -- I think I can tell you what the

20

distribution of those specials is, how many cases have them.

21

do have that information I think available.

22

Q

Okay.

23

A

But let me see if can I find it here.

24

recollection that we have that.

25

I have a

Yeah -- well, I'm sorry,

Counsel, I don't have it right here.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 501

We

1796

BALDUS - CROSS-EXAMINATION/MATTHIAS
1

Q

That's fine, but that data is available to you?

2

A

Oh, certainly.

3

Q

It is available to you?

4

A

Certainly.

5

Q

Now, let's just come full circle here on -- we started

6

with Furman, which was the -- I guess the theoretical

7

underpinning or inspiration for this study, and the teaching of

8

Furman is to avoid the imposition of the death penalty in a

9

wanton and freakish manner.

10
11

Does your study identify a single California inmate
whose death sentence was imposed wantonly and freakishly?

12
13

A

I don't have a measure for that.

I don't think there

is a legal measure for that.

14

The measures focus on what's the rate of death

15

eligibility and what's the rate of death sentencing?

16

are the relevant data that the Court looked to in Furman.

17

Q

Those

I guess the more precise question I should have asked

18

you is, your study does not purport to find that Mr. Ashmus's

19

death sentence was imposed freakishly or wantonly?

20

A

21
22
23

No.

That was not part of our assignment.

MR. MATTHIAS:

Thank you, your Honor.

I appreciate

it.
THE COURT:

Okay.

Thank you.

Give me, both

24

Counsel -- I've got to send a note to my secretary to contact my

25

driver and see how late he will wait.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 502

1797

BALDUS - REDIRECT/LAURENCE
1
2

What's your best estimate?

accurate, and I know that's difficult.

3
4

MR. LAURENCE:

I think I will be 35 minutes and 30

seconds.

5

THE COURT:

6

MR. MATTHIAS:

7

It has to be fairly

That's -Seventeen minutes and 12 seconds and

not a second more.

8

THE COURT:

So that's a quarter to six?

9

MR. LAURENCE:

The other thing we have to discuss,

10

your Honor, is we have George Woodworth here who can actually

11

make it on Monday afternoon.

But I assume --

12

THE COURT:

13

MR. LAURENCE:

14

THE COURT:

15

MR. LAURENCE:

No.

16

MR. MATTHIAS:

No.

17

MR. LAURENCE:

He could make it Monday afternoon or

18

Tuesday afternoon.

19

Why don't we release him and then -Yes.

Does that shorten this?

He's in town until then.

THE COURT:

All right.

Let's proceed.

20

(Pause in proceedings.)

21

REDIRECT EXAMINATION

22
23
24
25

BY MR. LAURENCE:
Q

Good afternoon, Professor Baldus.

I want to touch

first upon some questions that were asked of you about bias.
Several times you were asked questions about
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 503

1798

BALDUS - REDIRECT/LAURENCE
1

whether or not there was any injection of bias into this

2

study, and I want to ask first, were the attorneys for Mr.

3

Ashmus or any other death row inmates in a position to inject

4

bias into your study?

5

A

No.

6

Q

Why was that?

7

A

Because they would evaluate cases, make

8
9

recommendations, but we made the decisions.
Q

And at any moment in the last five years that you have

10

conducted this study did you feel that your ethical

11

responsibilities or your ethics were being compromised by this

12

study?

13

A

No.

14

Q

And what would you have done had you felt so?

15

A

We would have withdrawn from the study.

We make that

16

clear to everybody with whom we conduct studies.

17

We are doing it in a professional, intellectually honest way.

18

Those are the only circumstances under which we will do it.

19

will control what's published.

20
21

Q

We control it.

We

The selection of the members of your team were made by

whom?

22

A

The -- our research team?

23

Q

Yes.

24

A

Well, George Woodworth and I have gone back 30 years,

25

so it was the two of us that made choices, and we made decisions
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 504

1799

BALDUS - REDIRECT/LAURENCE
1

about who else to employ, and they were Robin Glenn and Richard

2

Newell who had worked for us for 15 years.

3

Q

And did I have or any other lawyer representing Mr.

4

Ashmus or any other death row inmate have any influence on who

5

you selected to work on this case?

6

A

No.

7

Q

Now, I wanted to ask a question -- before I ask that

8

question.

9
10

By the way, how much have you been paid for your
services over the past five years?

11

A

Nothing.

12

Q

Now, you've conducted many studies for death row

13

inmates and for criminal defendants over the years.

14

In those studies have they produced results that

15

were contrary to the legal interests of death row inmates?

16

A

Yes, often.

17

Q

How often?

18

A

Well, in Georgia there was no evidence of race of

19

defendant effect, which was what counsel had hoped we would

20

find.

21

held true in Colorado.

22

defendant effects nor race of victim effects.

23

The same holds true in Philadelphia County.

The same

In Nebraska we found neither race of

Those are all the effects that the attorneys in

24

those states wanted us to find and we did not find them.

25

fact, it was interesting, in Nebraska when we look at the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 505

In

1800

BALDUS - REDIRECT/LAURENCE
1

data statewide we did see race of defendant effects, but when

2

we controlled for the county of prosecution those race

3

effects disappeared altogether, and that's what we reported.

4

This is explained in our Nebraska Law Review article.

5
6
7

Q

Did you have any hesitation about reporting those

results to the lawyers representing those individuals?
A

No.

That's always our understanding.

We tell them

8

when we are engaged to do this kind of work we can't guarantee

9

what the results are going to be, and we will present the data

10

as we find them, and that's what we've always done.

11

Q

And did you do so in this case?

12

A

Oh, certainly.

13

this case.

14

Q

15

We applied the very same standard in

Did you make any changes to the database or any other

action in this study to bias the results one way or the other?

16

A

No.

17

Q

Now, the methodology questions that I was about to ask

18

on direct examination, I know I jumped the gun but I think I

19

must have been omniscient to realize that we were going to get

20

into this issue.

21

And let me go right directly into that.

22

Did you seek any assessments of the validity of

23

your methodology?

24

A

Yes, I did.

25

Q

What steps did you take to assess the validity of your
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 506

1801

BALDUS - REDIRECT/LAURENCE
1

methodology?

2

A

Well, we identified a group of scholars who had done

3

this kind of work before, empirical studies of death penalty

4

systems, and are well respected around the country.

5

converted the declaration into an article that would be more

6

familiar to them and sent it to them, and asked them to do a

7

review of the paper focusing solely on the validity of the

8

empirical methodology.

9

MR. MATTHIAS:

Excuse me, your Honor.

And I

This is the

10

problem we encountered at the outset.

11

that supposedly parallels the research that resulted in the

12

declaration, and I did not see the 120 pages of supportive -- I

13

assume they are supportive or I wouldn't be presented with them,

14

letters from other academics until this morning.

15

have been in existence --

16

THE COURT:

17

MR. MATTHIAS:

18

THE COURT:

19

MR. MATTHIAS:

20

I've not seen the article

Most of them

Well, let me just --- for over a month.

-- if that's true we won't go into it.
Well, it is true.

These are letters --

three of them are dated in October and I got them today.

21

I don't understand.

I don't understand why -- we

22

were ready to have this hearing six months ago, and this

23

window of opportunity to go and write articles and send them

24

to people would not have existed, and it gets dropped on me

25

today?

I don't understand.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 507

BALDUS - REDIRECT/LAURENCE
1

THE COURT:

1802

Well, it would be inappropriate to go into

2

them.

I wouldn't -- if you want to come back and have a chance

3

to look at them and prepare.

4

MR. LAURENCE:

5

Honor.

6

I don't think it's necessary, your

BY MR. LAURENCE:

7

Q

After all the questions that you received today about

8

methodology from the Attorney General's Office, did you have any

9

question about the validity of your methodology?

10

A

11

No, I don't.
This is the most extensive and complicated study

12

that we've ever done, and it's consumed an enormous amount of

13

our energies and talent, and I have enormous confidence in

14

the validity of our finings.

15
16

Q

And let me ask one question about the action you've

taken since you've completed the study.

17

Have you published the data or published the study,

18

and is it available for other individuals to read and comment

19

on?

20

A

In June we put on the SSR, the Social Science Research

21

Network a copy of the paper that we circulated to other scholars

22

to review, and it's been in the public domain since this past

23

summer.

24
25

And in addition I presented these findings two days
ago at a meeting of the American Criminology Society, which
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 508

BALDUS - REDIRECT/LAURENCE
1
2

1803

is meeting here right now this week in San Francisco.
Q

Okay.

There was a question that I asked you about

3

probation reports and whether or not they were valid sources of

4

information.

5

Have you used probation reports in other studies?

6

A

Yes.

7

Q

Were there any questions raised about the quality of

8
9
10
11
12

information contained in those probation reports?
A

No.

Probation reports are considered very high-level

data.
Q

Okay.

I'd like to turn your attention now to the

coding materials and protocol.

13
14

In New Jersey and -- New Jersey and Nebraska.

You called the documents that you provided to your
coders "the protocol"; is that correct?

15

A

Yes.

16

Q

They were provided with a notebook of material, and I

17

want to clarify exactly what they got.

18

The first portion of that book was the documents

19

that were -- you looked at for the Attorney General's

20

Exhibits WWW?

21

A

Yes.

22

Q

Who prepared those documents?

23

A

You are going to have to help me here a little bit.

24
25

Can you show me the documents?
Q

Certainly.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 509

1804

BALDUS - REDIRECT/LAURENCE
1

(Whereupon, counsel hands

2

the document to the witness.)

3

THE WITNESS:

Oh, this is WWW.

This is information I

4

prepared.

5

law and then provides my overview of what the study is all about

6

and what I expect the coders would be doing.

7

BY MR. LAURENCE:

8
9
10
11

Q

A large part of it is just excerpts from California

Did I review the document at any time prior to going

to the coders or any other lawyer representing Mr. Ashmus or any
other death row inmates?
A

Honestly, I don't recall, but there would be no reason

12

for me to show it to you.

13

not certain.

14

Q

15

I don't think so.

But honestly I'm

You testified that the bulk of the notebook was --

consisted of legal material?

16

A

Uh-huh.

17

Q

I'm going to show you documents that were Bates

18

labeled Baldus 0001 through 00373.

19

MR. LAURENCE:

20

document.

21

General.

Your Honor, I've not marked this

It's the discovery that we provided to the Attorney
I have no problems marking it as an exhibit.

22

MR. MATTHIAS:

23

THE COURT:

24

MR. LAURENCE:

No objection.

Okay.
But unfortunately it's my only copy.

25
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 510

BALDUS - REDIRECT/LAURENCE
1

1805

BY MR. LAURENCE:

2

Q

Is that the material that my office provided to you?

3

A

Yes.

4

Q

And that was placed in the coding book?

5

A

Yes.

6

Q

And that you considered part of the protocol because

7

it was being used to code the cases?

8

A

It was the core of the coding protocol.

9

Q

Okay.

10

MR. LAURENCE:

Now, your Honor, let me -- actually, I

11

should mark that correctly.

12

Petitioner's Exhibit 224.

13

(Petitioner's Exhibit 224 was marked for identification.)

14

THE COURT:

15

MR. LAURENCE:

16

19
20

It will be so marked for identification.
All right.

And I'd like to move it

into evidence, your Honor.

17
18

That should be marked as

THE COURT:

It will be admitted.

(Petitioner's Exhibit 224 was received into evidence.)
BY MR. LAURENCE:
Q

I want to now turn your attention to decision-making

21

in this study because it seems to be unclear as to who is making

22

the final decision as to whether or not a case is death

23

eligible.

24

A

I made it.

25

Q

So if a coder, an initial coder, the ones who took the
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 511

1806

BALDUS - REDIRECT/LAURENCE
1

cases initially and created the thumbnail and filled out the DCI

2

incorrectly coded that case, who would be responsible for

3

correcting it?

4

A

Well, ultimately I would.

I had students who would

5

review them, and then we would get together and go over them,

6

the ones we thought were problematic, and work out a consensus.

7

But I would sign off on them.

8
9
10

Q

And you testified that in three-quarters of the

death-eligible cases you personally reviewed the probation
report; is that correct?

11

A

Yes.

12

Q

Let's talk about the cases in which you did not review

13

Yes.

the probation reports.

14

What types of case were those kinds of cases?

15

A

Those were cases where the statutory special

16

circumstance was based on clear, factual matters.

17

cleaning team presented narratives that convinced me that they

18

were probably correct, that there was a robbery, you know, many,

19

many or hundreds and hundreds of robberies -- over 250 robbery

20

cases in our database, and I didn't read the coding protocol for

21

all of those.

22

And my

I specialized on the ones that were hard torture

23

and lying in wait and pecuniary gain.

24

one.

25

Q

That was another hard

Is it fair to say that you believe you had reviewed
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 512

BALDUS - REDIRECT/LAURENCE
1

1807

the probation reports for all hard decisions --

2

A

Yes.

3

Q

-- regarding death eligibility?

4

A

Yes.

5

Q

And if a student had made an error prior to your

6

reviewing the document would you have corrected that error?

7

A

If it came to my attention, certainly.

8

Q

Okay.

9

that has been talked about in this case.

10
11
12
13

I want to talk a little bit about the discovery

Do you recall sometime last year me asking for
information about your coding of cases for the Attorney General?
A

Yes.

You mean, in terms of the spreadsheet that we've

been discussing?

14

Q

Yes.

15

A

Yes.

16

Q

Let's break those requests down.

17

First, at some point do you recall me asking for

18

the thumbnails that had been produced during the coding

19

process?

20

A

Yes.

21

Q

How many pages of thumbnails were there roughly?

22

A

Oh, several.

23

something.

24

They average a couple of pages, and there were 1900 cases, but

25

we were missing them in maybe 50 or 60 cases, so you are talking

Two or three -- 2000 I would guess or

They average -- probably more than that, actually.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 513

BALDUS - REDIRECT/LAURENCE
1

1808

about several -- many hundreds of pages.

2

Q

And you provided them to me?

3

A

Yes.

4

Q

At the time that you provided them all to me did you

It was big task getting it all together.

5

make any statements about whether or not we should rely on those

6

as conclusive for either coding purposes or factual purposes?

7

A

No.

I told you that we were in the process of

8

cleaning all those cases, and that they definitely were not what

9

we would consider the definitive interpretation.

10
11
12

Q

What was the definitive interpretation of the facts

that you used to code cases?
A

The definitive interpretation is what appeared in our

13

narrative summaries that we created starting in May of 2009

14

continuing up to December of 2009.

15

Q

I'd like to show you what we have provided in

16

discovery as data 001 to 1386.

17

going to ask you some questions on the first one.

18
19
20
21

MR. LAURENCE:

These are double-sided, and I'm

Your Honor, again, this is my only

copy, but if I could have it marked as Exhibit 228.
THE COURT:

It will be so marked.

(Petitioner's Exhibit 228 was marked for identification.)

22

MR. MATTHIAS:

What are these?

23

MR. LAURENCE:

The discovery turned over to the

24
25

Attorney General's Office?
MR. MATTHIAS:

They were labeled data 001 to 1386.

They are labeled or paginated?

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 514

1809

BALDUS - REDIRECT/LAURENCE
1

MR. LAURENCE:

They are paginated.

2

MR. MATTHIAS:

Could I just take a peak?

3

MR. LAURENCE:

Certainly.

4

MR. MATTHIAS:

I will recognize it on site, but I

5

don't know it by that label.

6

I'm sorry.

BY MR. LAURENCE:

7

Q

I'd like to -- I'd like you to take a look at data 001

8

through 57.

9

double-sided.

That's just the first 57 pages.

Again, it's

10

A

Very well.

(Complies.)

11

Q

Can you tell me what those pages represent?

12

A

Yes.

They represent our final judgment of the special

13

circumstance and the death eligibility of each of the 1900 cases

14

identified by project number and defendant's name.

15

Q

And that's the coding for each of the cases?

16

A

That's right.

17
18

That's the coding of the special

circumstances.
Q

And from that document you can tell which cases are

19

coded for death eligibility and which special circumstances you

20

have concluded is present, or found to be true in each of the

21

cases in the study?

22

A

Yes.

23

Q

I'd like you to take a look at data 58 to 60.

24

A

(Complies.)

25

Q

Right after that document.

What is that?

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 515

BALDUS - REDIRECT/LAURENCE
1

A

1810

This is what we call an array, which presents more

2

detail on the underlying information that's coded in the data

3

collection instrument.

4

through 53 of the DCI.

It includes information on questions 40

5

Q

Okay.

6

A

Well, we did -- Richard Newell is the man who actually

7
8
9

And did you produce that array?

produced the document under my direction.
Q

And it contains coding for many of the questions that

are asked in the DCI?

10

A

Yes.

It includes coding for questions 40 through 53.

11

Q

Okay.

Do you offhand recall what 40 through 53 were?

12

A

Yes.

They had to do with basically what was charged,

13

and what was charged in terms of liability and found in terms of

14

liability, who the decision-maker was and what special

15

circumstances were found or were present.

16

Q

17

Now, I want to turn your attention to the narratives.
Do you have any objection to me providing the

18

Attorney General's Office with the narratives that you

19

shipped to my office earlier this month?

20

A

No.

21

Q

Now, how different are the narratives that you

22
23

produced just a few weeks ago from the thumbnails?
A

They are different in this regard; they represent a

24

more considered judgment of the death eligibility of the cases,

25

and they have a refined statement of the facts.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 516

1811

BALDUS - REDIRECT/LAURENCE
1

And also they have authority, the authority that we

2

relied on for the death-eligible cases, that is, that didn't

3

result in a CFF finding of death eligibility.

4

That is, when we were having to rely a finding of

5

death eligibility in a case that did not result in a capital

6

conviction and a finding of a special we turned to the case

7

law, and here it includes the citations that we thought were

8

appropriate to support our judgment that this case was

9

factually liable -- factually death eligible.

10
11

Q

Now, the narrative that is in that -- the description

of the case in that narrative --

12

A

Yeah.

13

Q

-- how different are those narratives from the

14
15

thumbnails that you provided to me last year?
A

They were different only in the sense that they

16

reflect a more accurate judgment of what we think was in the

17

case and what happened procedurally in this case -- what was

18

found and what was present in the case.

19
20
21

Q

In what percentage of the time is that different from

the thumbnail?
A

I've not actually quantified that.

I've not made that

22

an individual research project, but I would guess probably a

23

quarter to 30 percent of the death-eligible cases are coded

24

different now than they were before.

25

Q

Now, if you were asked to review coding decisions of
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 517

BALDUS - REDIRECT/LAURENCE

1812

1

another researcher who conducted an identical study, and I

2

provided you with the probation report and data one through --

3

one through 57, the coding information, could you review the

4

coding of that particular -- that particular study?

5

A

6
7

Here's my assumption of what you are asking me.
I have the probation report and I have the

bottom-line codes on death eligibility and the specials.

8

Q

Correct.

9

A

Yes.

I could look at those probation reports and

10

determine whether or not they were supported, whether they

11

supported the findings of death eligibility, and in addition,

12

the particular specials that were alleged to be found or

13

present.

14

Q

And even with the narratives that were produced in

15

these cases you still reviewed three quarters of the death

16

eligible probation reports?

17

A

Yes.

18

Q

Why?

19

A

Did you say why?

20

Q

Why?

21

A

Why?

22
23

Because I wanted to make sure this was as

correct as we could get it.
Q

Now, there were some questions about jury

24

nullification.

I want to clarify the controlling fact-finding

25

rule and jury nullification.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 518

BALDUS - REDIRECT/LAURENCE
1
2

1813

Of the 1900 cases that you reviewed, how many did
you conclude warranted a jury nullification finding?

3

A

Twenty-five.

4

Q

Twenty-five out of 1900 cases?

5

A

Yes.

6

Q

And of those, how many of the 25 were classified as a

7
8
9

death-eligible case?
A

Seventy-two percent were death eligible; 28 percent

were not death eligible.

10

Q

And that's 18?

11

A

That's right.

12
13

Eighteen death eligible and seven not

death eligible.
Q

Okay.

You were then asked in a series of questions

14

hypotheticals involving facts from the defendant's statements,

15

or one was involving the Dalai Lama.

16

Do you recall that testimony or those questions?

17

A

About the Dalai Lama?

18

Q

Yes.

19

witness --

There was a question asked if you had a drunk

20

THE COURT:

21

THE WITNESS:

22

Lama part of it.

23

Eagle Scouts and Dalai Lamas.
Oh, okay.

I guess I missed the Dalai

BY MR. LAURENCE:

24

Q

Yeah.

25

A

That was the drunk person?

Not the Dalai Lama.

No.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 519

1814

BALDUS - REDIRECT/LAURENCE
1

Q

But yes --

2

A

A drunk and then credible people.

3

Was it the Dalai

Lama and Boy Scouts?

4

Q

Yes.

5

A

Oh, okay.

6

Q

Did it change your mind at all to answer your

7

I missed the Dalai Lama.

I'm sorry.

questions if the Dalai had been -- if you recall the Dalai Lama?

8

A

No.

9

Q

First, I was to clarify your understanding of what

10

Furman required, and let me ask this question.

11
12

No.

Does Furman in your mind require the legislature to
define crimes --

13

A

Yes.

14

Q

-- that are death eligible?

15

A

Yes.

16

Q

Okay.

And does the legislature in defining crimes

17

take into account whether or not the police officers violate the

18

Fourth Amendment?

19

A

No.

20

Q

So tell me, what should the legislature do in

21

compliance with Furman that confirm that -- what should the

22

legislature do?

23

A

It should pass a statute that restricts death

24

eligibility to narrowly-defined categories of cases that can be

25

objectively ascertained by prosecutors.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 520

BALDUS - REDIRECT/LAURENCE
1
2

Q

1815

And that's irrespective of any criminal procedure

violations that a future law enforcement officer might entail?

3

A

Yes.

4

Q

Now, the hypotheticals that he gave you this

5

afternoon, did any of them -- were any of them familiar as

6

cases -- case hypotheticals in this study?

7

A

In terms of the weight that we put on different kinds

8

of evidence?

9

Q

Is that what you mean?

Actually, he asked you a series of hypotheticals

10

about, "The defendant said I did it, but I did it for a good

11

reason."

12

A

Oh, yes.

13

Q

Do you recall whether or not any of those were coded

14

Some of those sounded familiar to me; yes.

as death eligible?

15

A

I don't.

16

Q

Now, I wanted to ask you a question about how you went

17

about making decisions about death eligibility.

18
19

You said that the narratives that you have put
together have legal authority for a death-eligibility decision.

20

But do you have a hierarchy -- did you have a

21

hierarchy in making decisions about whether or not a case was

22

death eligible?

23

A

Yes.

Now, this was a case that was not subject to the

24

controlling fact-finding rule, that is, if a fact controlling

25

fact finder found that there was M1 liability and a special that
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 521

BALDUS - REDIRECT/LAURENCE
1

was the end of it.

2

1816

That was what determined it.

The subsequent issue had to do with the cases where

3

that did not occur, and when it hadn't occurred we looked at

4

appellate authority as I've explained here earlier.

5

We also looked at other similar cases in our --

6

this study that looked like that case that resulted in a CFF,

7

that is, a finding by a jury of M1 liability in the presence

8

of a special.

9

And in the absence of those sources of authority we

10

looked at our coding protocol -- the coding protocol that

11

your office prepared for us.

12

Q

And that was basically general principles of the law?

13

A

That's right.

14

Q

And jury instructions -- that sort of thing?

15

A

That's right.

16

Q

So that's the hierarchy.

You made decisions first on

17

controlling fact-finding; appellate decisions and other cases in

18

which a fact finder had made a conclusion of liability; and only

19

after that did you resort to the HCRC protocol as the authority

20

for finding death-eligibility; is that correct?

21

A

Yes.

22

Q

Okay.

That's right.
I want to talk now a little bit about Table

23

Three, which is the table that has three parts, and we talked

24

about it this morning as well.

25

And I only want to ask you two questions.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 522

1817

BALDUS - REDIRECT/LAURENCE
1

The comparison between New Jersey and California, the

2

difference between you employing a CFF rule, controlling

3

fact-finding rule versus persuasive evidence rule, what effect

4

did that have on overall eligibility in your mind?

5

A

6
7

I'd just like to amend the difference.
We applied the controlling fact-finding rule in

both studies.

8

Q

Oh, okay.

9

A

It was only in the circumstances where the controlling

10

fact-finding rule did not determine outcome that we applied a

11

different standard.

12

In this California study we applied the legal

13

sufficiency rule, that is, if a death sentence had been

14

imposed in this case would an appellate court have affirmed

15

it?

16

In New Jersey we applied a question of whether or

17

not there was sufficient evidence for a jury to make a

18

factual determination.

19

whatever in the two of them.

20
21

Q

24
25

And the other question I have on this table is that

New Jersey -- the figure you use for Table Three was 21 percent.

22
23

In my opinion there's no difference

Was that your figure or was that Judge Baime's
figure?
A

That's Judge Baime's figure.

The figure estimated in

my analysis was slightly lower than that.

I think it was

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 523

BALDUS - REDIRECT/LAURENCE
1

16 percent.

2

1818

I think I mentioned that in the affidavit.

That I used his because he had twice the sample

3

size.

4

or -- more than a decade after I left as special master he

5

carried on and applied our methodology into estimating the

6

death sentencing eligibility rates -- sorry -- the

7

death-eligibility rates and that's the one I'm using here.

8

Q

You see, he had run this process for nearly a decade

Okay.

Now, there was a question about

9

death-eligibility, and whether or not you can predict

10

death-sentencing rates of real death eligible versus

11

hypothetical death-eligibility.

12

The discussion was on Figure Two and Table Five of

13

whether or not we can eliminate from the denominator, or from

14

the denominator those individuals who could not be sentenced to

15

death because they were not convicted of first-degree murder

16

with special circumstances.

17

Do you recall that discussion this afternoon?

18

A

Yes.

19

Q

At one point you were -- I think it was a difficult

20

calculation to make, but can you tell us if you just took murder

21

one convictions and special circumstances found to be true what

22

the percentage of the death-sentencing rate is?

23

A

It's in the declaration.

24

Q

Yes.

25

A

I can't remember that off the top of my head.

Why don't we go to --

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 524

BALDUS - REDIRECT/LAURENCE
1

Q

2

I'm sorry.

1819

Let me withdraw that question.

Let's go to figure two.

3

A

Okay.

4

Q

And I believe it's box 3A.

5

3A says that 83 percent of the cases qualify as a

6

special circumstance -- a special circumstance has been found

7

to be true or admitted by the defendant.

8

A

Yes.

9

Q

And the numerator is 3067.

10

And did you testify on cross-examination that that

11

needed to be modified to 3354 to account for the nine percent

12

of the cases that you believe had a special circumstance

13

found to be true but resulted in a term of years?

14
15

A

That's right.

It was 3405.

3404 is what I suggested

that be adjusted to.

16

Q

That works out to be 21 percent death-sentencing rate

18

A

Yes.

19

Q

-- under anyone's theory of murder one liability plus

17

20

--

special circumstance found to be true?

21

A

Yes.

22

Q

Twenty-one percent?

23

A

Uh-huh.

24

Q

Thank you.

25

Now, I'd like to talk a little bit about

the 10 cases, and I mean really a little bit, because I'm
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 525

1820

BALDUS - REDIRECT/LAURENCE
1

heading quickly to my time limit.

2

I first want to ask a question about -- you know

3

what?

I don't even want to ask any specific questions about

4

any case except for one, and that is 1682.

5

A

Yes.

6

Q

That's the one that had multiple special circumstances

7

that were found by the coder and is still in the database as

8

being death eligible for many different special circumstances.

9
10

Do you have a reason to believe that that case had
been -- do you have a -- let me back up.

11
12

Why do you believe that that case was miscoded?
A

Well, it's a very obscure probation report, and it

13

doesn't sharply distinguish between victims and non-decedent

14

victims, and moreover when you read about the second

15

non-decedent victim and you turn to the next time where it asks

16

about the victim's statement, it says "victim deceased."

17

And somebody who wasn't carefully reading this

18

probation report might think that the -- I won't mention his

19

name, but the second non-decedent victim was killed.

20

what I think informed -- that was a mistake of reading I

21

think on the part of the coder.

22

Q

That's

Did you -- did you come across any other mistakes like

23

that in the several years that you have been reviewing these

24

kinds of coding decisions?

25

A

Yes.

Yes, we have.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 526

BALDUS - REDIRECT/LAURENCE
1

Q

And what did you do when you came across them?

2

A

Well, we fix them.

3

Q

All right.

1821

4

Now, I'd like to try to understand how

important these 10 cases are to your analysis.

5
6

We fixed them.

And he questioned you about 10 cases; only 10 out of
1900 cases were you questioned about.

7

Did you conduct any analysis of the data to

8

determine what effect errors in coding in these 10 cases

9

would have on your overcall conclusions?

10

A

Professor Woodworth did.

Professor Woodworth recoded

11

those 10 cases as not death eligible and then recomputed the

12

death-eligibility rates shown in Table One in Part One, row

13

four, column B and D.

14

That's Carlos Window and 2008.

And it would have -- this change in coding of these

15

cases would have reduced the death-sentencing rate by

16

.47 percent -- .47 of one percent under Carlos Window law and

17

.46 of one percent under 2008 law.

18

Q

And that's if you were wrong on these cases --

19

A

That's right.

20

Q

-- entirely?

21

A

That's right.

22

Q

I'd like to show you Petitioner's Exhibit 227.

23
24
25

If they were all wrong.

(Whereupon, counsel hands the exhibit to the witness.)
BY MR. LAURENCE:
Q

And ask you, is this the analysis that Dr. Woodworth
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 527

1822

BALDUS - REDIRECT/LAURENCE
1
2

provided to you?
A

I honestly -- he didn't provide it to me.

I got the

3

results from him, but I haven't seen this document.

4

afraid you are going to have to ask Professor Woodworth.

5

Q

6

All right.

So I'm

Certainly.

But your testimony is that the change according to

7

Dr. Woodworth would be .46 for 2008 law, death-eligibility,

8

row four of Table One?

9

A

Yes.

10

Q

And .47 reduction in death-eligibility for Carlos

11

Window law under row four --

12

A

Yes.

13

Q

-- of table one?

14
15

Okay.

Now, did you also conduct an analysis of
lying-in-wait cases?

16

A

Yes.

17

Q

Tell us -- please tell us.

18

A

We certainly did.

We conducted what are known as

19

"sensitivity analyses" along the lines of an analysis that you

20

just mentioned with respect to these 10 cases.

21

for this purpose the lying-in-wait cases and the torture cases,

22

because those are the ones where the risk of error we believe

23

was highest, because those involved the most subjective

24

judgments.

25

We identified

And what Professor Woodworth did was to take a
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 528

BALDUS - REDIRECT/LAURENCE

1823

1

random sample of the 25 -- a random sample of 25 of the 293

2

cases in the sample in which lying in wait was the only

3

special circumstance found, and he recoded for those cases

4

the case from death eligible to not death eligible, and then

5

estimated in the same way that we've described the change

6

with respect to the 10 cases.

7

overall death-sentencing rates would have been in Table One,

8

Part One, row four, and then he repeated this 10 more times.

9

He then recomputed what the

And what he found was that the recoding of these

10

across 10 experiments reduced the overall death-eligibility

11

rate from 1.3 percentage points to .7 percentage point.

12

the average decline in death eligibility across both was .9.

13

Q

14

And

So let me back up and make sure I understand this.
You took 25 cases --

15

A

Yes.

16

Q

-- where lying in wait was coded as the sole special

17

circumstance?

18

A

Yes.

19

Q

You assumed those were all death-eligible cases?

20

A

Yes.

21

Q

So you assumed that you had made a mistake, or you

22

changed death eligibility to non-death eligible in 25 randomly

23

selected lying-in-wait cases --

24

A

Yes.

25

Q

-- where it was the sole special circumstance?
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 529

BALDUS - REDIRECT/LAURENCE

1824

1

A

Yes.

2

Q

And you ran that 10 different times?

3

A

Uh-huh.

4

Q

Because -- and the reason why we had to run those is

5

because they were weighted cases.

You didn't know how much

6

weight the individual cases would have for the overall numbers I

7

assume?

8

A

Yes.

9

Q

And the range of reduction in death eligibility was

10

I'm sorry.

between .7 and 1.3 percentage points?

11

A

Yes.

12

Q

And the average of the 10 runs was .9 percentage

13

points?

14

A

That's right.

15

Q

Actually, let me show you an exhibit, because I'd like

16
17
18
19
20

Let me give you the --

to mark this as an exhibit.
A

That's the one.

(Whereupon, counsel hands the exhibit to the witness.)
BY MR. LAURENCE:
Q

Yeah.

I'm showing you Petitioner's Exhibit 226, which

21

is entitled, "Sensitivity Analysis for Cases Uniquely Coding

22

with Lying in Wait Special Circumstance."

23

These two tables tell us the results of the 10 runs

24

on page one?

25

A

Yes.

And this is better evidence because it

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 530

1825

BALDUS - REDIRECT/LAURENCE
1

distinguishes between the Carlos Window findings and the 2008

2

findings.

3
4
5

Q

So page one -- and actually the pages that follow,

tell me what those are.
A

Well, the first one here has to do with -- the pages

6

that follow are the raw output that Professor Woodworth produced

7

that he used to synthesize into the summary statistics on the

8

first page of the exhibit.

9
10
11

Q

Okay.

So the first page summarizes the computer runs

that were -- that were made by Professor -- by Dr. Woodworth?
A

Yeah.

The first one -- yes, it does.

The first part,

12

on the first page, the top table shows the differences for the

13

Carlos Window period and the average decline of 1.47 percentage

14

points, and the second table on page one shows the decline under

15

2008 law, and it was .92 percent.

16

Q

Did you perform the same kind of analysis for torture

17

special circumstances that were uniquely coded for cases making

18

them death eligible?

19

A

Yes.

20

Q

I'm going to show you Petitioner's Exhibit 225.

21
22
23
24
25

Professor Woodworth did that for torture.

(Whereupon, counsel hands the exhibit to the witness.)
BY MR. LAURENCE:
Q

Was the same analysis used to produce this exhibit as

you've just described for the torture special circumstances?
A

Yes.

Exactly the same.

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 531

1826

BALDUS - REDIRECT/LAURENCE
1
2

Q

You randomly selected 25 cases, and you ran the runs

10 times?

3

A

That's right.

That's what Professor Woodworth did.

4

Q

And what was the result of this analysis?

5

A

Under Carlos Window law the average decline of

6

death-eligibility as reported in Table One, Part One, row four,

7

column B was 1.6 percent, and under column D, row four it was

8

.95 percent.

9

Q

And that's if you made 25 mistakes for a torture

10

special circumstances that uniquely coded case that has a

11

essential circumstances of torture --

12

A

Yes.

13

Q

-- if you made 25 mistakes that's the expected

14

reduction in death-eligibility?

15

A

Yes.

16

Q

Okay.

17

A

Well, it shows you that the findings are very robust.

18

What does that tell you about your study?

I don't think we have anywhere near that kind of

19

coding error in this study at all.

20

confidence in the validity of our codes.

21

I have a lot of

So this makes an assumption that goes well beyond

22

what I think the actual rate of error is.

There's no

23

question that there are some mistakes in the coding, one of

24

which was revealed here this afternoon, although it didn't

25

affect death-eligibility.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 532

1827

BALDUS - REDIRECT/LAURENCE
1

I think it shows that the validity of the coding

2

and special circumstance is very robust and very strong.

3

gives me great confidence in the validity of what we found.

4

Q

It

Now, this analysis also assumes that all errors

5

operate in one direction, that is, in bias assignment of

6

death-eligibility; is that correct?

7

A

Yes.

8

Q

Do you have any reason to believe that would be the

9
10

only direction that bias might appear?
A

No.

I think that -- that the bias could appear in

11

findings of not death-eligibility as well.

12

in our review of the 10 cases that the coders found no

13

death-eligibility and we found death-eligibility.

14

both ways.

15
16
17

MR. LAURENCE:

In fact, we saw some

That runs

I move to admit Petitioner's Exhibits

225 and 226.
MR. MATTHIAS:

I would object to that.

18

generated -- 225 was generated on November 2nd.

19

generated on November 2nd.

20

These were

don't know why I had to get them after lunch.

21

MR. LAURENCE:

226 was

If counsel wanted to use these I

Your Honor, the first time we heard

22

that he was going to question Professor Baldus on any individual

23

coding decisions was Tuesday night.

24
25

MR. MATTHIAS:

That's false.

I told Mr. Laurence

probably a year ago that I would be questioning Professor Baldus
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 533

1828

BALDUS - REDIRECT/LAURENCE
1

on individual cases.

Last week at his request I identified

2

them, which is relevant to 227, if there's going to be a motion

3

to admit that.

4

Mr. Laurence asked me to identify --

5

THE COURT:

Let me interrupt here.

Let me take that

6

off for under submission and we can argue it Monday.

I just

7

can't emphasize how much we're running out of time.

Staff is

8

gone.

9

going do get down to my driver because time crucial.

10
11
12
13

My driver is going to be gone.

MR. LAURENCE:

I don't know how I'm

Yes, your Honor.

BY MR. LAURENCE:
Q

Finally, I want to talk just about a corroboration of

your findings.

14

Do you have information that corroborates your

15

findings with respect to the death-eligibility rates in

16

California?

17

A

Yes.

18

Q

And what is that?

19

A

What gives us confidence in our findings of

20

death-eligibility is their consistency with other studies done

21

with different methodologies, specifically the supplemental

22

homicide report, which showed a death-eligibility rate adjusted

23

by Professor Woodworth of 50.3 compared to the findings that we

24

have in Table One of 55 and 59.

25

Also the death-eligibility rate among M1
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 534

BALDUS - REDIRECT/LAURENCE

1829

1

convictions in our analysis is 91 for Carlos Window and 95

2

for 2008, and that is very close to the findings that were

3

produced by Professor Shatz using the same methodology on a

4

smaller sample of cases.

5

Q

And if I understand correctly, the supplemental

6

homicide report data is a different methodology and different

7

data source from which you used?

8

A

Completely different.

9

Q

Professor Shatz's study is different data sources but

10

the same methodology?

11

A

That's right.

12

Q

Do you understand Professor Shatz's included juvenile

13

cases in his study?

14

A

Yes.

15

Q

If he had excluded juvenile cases from his study what

16
17
18
19

would be the expected effect on the 84 percent figure?
A

Well, that would increase the death-eligibility rate

in an amount I don't know.
Q

Okay.

Do you have any information that corroborates

20

your finings with respect to comparisons of California's

21

death-eligibility rate to other states?

22

A

Yes.

What impresses me about our findings is their

23

consistency with the rates of death-eligibility estimated under

24

the supplemental homicide reports.

25

We compared Maryland, New Jersey, and Nebraska with
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 535

BALDUS - REDIRECT/LAURENCE

1830

1

California, and if you do the same thing with the estimates

2

based on the supplemental homicide reports the results are

3

very comparable.

4

Q

Okay.

And finally, do you have any information that

5

corroborates your findings with respect to California's

6

death-sentencing rates?

7

A

Yes, I do.

8

Q

What is it?

9

A

Specifically in Note 49 of my declaration our studies

10

there using slightly different methods to show that California's

11

death-sentencing rate is among the lowest in the nation.

12

also among murder one convictions our data show a

13

death-sentencing rate of 9.4 percent, while Professor Shatz's

14

data show death-sentencing rates of 11.4 and 12.6, which are

15

very comparable to our findings.

16

MR. LAURENCE:

Thank you.

17

MR. MATTHIAS:

This will be very quick.

18
19

And

RECROSS-EXAMINATION
BY MR. MATTHIAS:

20

Q

You understood that I was going to ask you about 10

21

cases.

22

A

Certainly.

23

Q

Right.

24

those cases?

25

A

And did you understand why I was asked to name

Because counsel requested you to.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 536

1831

BALDUS - RECROSS/MATTHIAS
1

Q

Right.

If those 10 cases are merely emblematic of

2

problems throughout the sample, would your answer be any

3

different to Mr. Laurence's question when he said, "Why don't we

4

just take those 10 of 1900 cases out and readjust the numbers?"

5
6

Would that be an adjustment adequate to deal with a
problem where those were emblematic?

7

Because I can assure you I didn't read 1900 cases.

8

A

I'm not sure what you mean by "emblematic."

9

Q

That there are many, many more like them that suffered

10
11
12

from the same problem.
A

Could be.

That's why we did the analysis that

Professor Woodworth conducted to look at large numbers of cases.

13

You see, that's what that addresses, what he did.

14

He looked at large numbers of cases and took 25 different

15

samples 10 times.

16

error would do to the findings.

17

Q

That's what gives you a sense of what the

You were asked a series of questions about the

18

supplemental homicide reports -- a different body of material

19

from probation reports; right?

20

A

Yes.

21

Q

And it includes, for example, all cases in which

22

there's been a report of a crime, which would include cases in

23

which there's been an acquittal, unsolved cases, and cases which

24

for whatever reason aren't prosecuted.

25

very different body of material.

It's a very large and

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 537

1832

BALDUS - RECROSS/MATTHIAS
1
2
3
4

A

That's why the consistency of the findings estimated

with those data with our findings is truly impressive.
Q

And is that not a species of apples-to-oranges

problem?

5

A

No, it's --

6

Q

Just a happy coincidence that the numbers coincide?

7

A

It surprised me greatly, because I thought they would

8

be different for the very reasons that you stated.

9

aren't.

10

Q

But they

They aren't different.
But you do know from your reading, you do know that

11

the supplemental homicide reports are notoriously unreliable,

12

inaccurate?

13

A

For some purposes.

But apparently they are not

14

unreliable for these purposes because our findings and the

15

findings that are very reliable replicate them almost to the T.

16

Q

One of the reasons that they are notoriously

17

unreliable is that the reporting element of it is purely

18

voluntary.

19

as a result the reports are inconsistent and spotty compliance;

20

isn't that correct?

21

A

There's no requirement in law for these reports so

It is.

And that's in the literature, is it not?

But another thing that's in the literature is

22

that those errors could be random, and that's what our findings

23

suggest about the errors in the supplemental homicide report.

24

We had complete data here and in New Jersey and in

25

Maryland, and our findings are almost identical to what's in
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 538

BALDUS - RECROSS/MATTHIAS
1

the supplemental homicide report, which suggests very

2

1833

strongly to me that the errors in the SHR are random.

3

MR. MATTHIAS:

4

THE COURT:

5

MR. LAURENCE:

6

THE COURT:

7

Professor.

8
9

Thank you.

Thank you, your Honor.

Thank you.
No further questions, your Honor.

Thank you very much for testifying,

You are excused.

We will recess now.

Let's plan to meet in this

building but I'm not sure here at 10 o'clock, Monday.

10

THE CLERK:

We have this courtroom Monday morning.

11

THE COURT:

Oh, we have it Monday morning.

12

THE CLERK:

We have it for one motion hearing that we

13

have, so we can have it all morning.

14

they start.

15

THE COURT:

Okay.

16

MR. LAURENCE:

Just depends on how soon

We will report here.

Your Honor, Professor Woodworth is not

17

available in the morning on Monday.

18

I can see if I can't get

him here late morning.

19

THE COURT:

Well, I've got --

20

THE CLERK:

You have to leave by three.

21

THE COURT:

I have to leave by three.

22

MR. LAURENCE:

23

I've got a handful of questions.

24
25

THE COURT:
one.

He was planning to be here at one.

We can hear -- just tell him to come at

Wait, we have the court in the morning.
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 539

1834

BALDUS - RECROSS/MATTHIAS
1

THE CLERK:

I'll check.

3

THE COURT:

Okay.

4

THE CLERK:

So I will just get a reporter.

5

THE COURT:

So do we want to meet at one here?

6

MR. LAURENCE:

7

THE COURT:

2

8

He doesn't have anything till

three.

do?

Then we are okay.

Yes.

Or do we want to meet at 10?

Nothing to

We don't have anyone for 10?

9

MR. LAURENCE:

10

THE COURT:

11

MR. MATTHIAS:

We have no one for 10.

Let's plan to meet here at one o'clock.
Is your Honor confident that we can

12

have the discussion about exhibits and Professor Woodworth in

13

that amount of time?

14

THE COURT:

15

MR. LAURENCE:

16

MR. MATTHIAS:

THE COURT:

23
24
25

So we've got two hours before I have to

leave if we start at one.

21
22

I don't contemplate more than 15

minutes, 20 minutes max.

19
20

I will qualify him with one question,

and I have a couple of questions on matters that came up today.

17
18

How long will the professor take?

MR. MATTHIAS:
mind.

I didn't know what Mr. Laurence had in

That's why I broached it.
THE COURT:

Okay.

We can make it.

Okay.

you Monday at one.
(The proceedings adjourned at 5:35 p.m.)
Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 540

We will see

I N D E X
PETITIONER'S WITNESSES
BALDUS
DIRECT EXAMINATION BY MR. LAURENCE

PAGE 1562

CROSS-EXAMINATION BY MR. MATTHIAS

PAGE 1591

REDIRECT EXAMINATION BY MR. LAURENCE

PAGE 1797

RECROSS-EXAMINATION BY MR. MATTHIAS

PAGE 1830

E X H I B I T S
PETITIONER'S EXHIBITS MOVED INTO EVIDENCE
219

PAGE 1569

224

PAGE 1805

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 541

CERTIFICATE OF REPORTER
I, CHRISTINE TRISKA, Pro-Tem Reporter for the United
States Court, Northern District of California, hereby certify
that the foregoing proceedings in Case No. C93-0594, Troy Ashmus
versus Robert K. Wong, Acting Warden of San Quentin State
Prison, were reported by me, a certified shorthand reporter, and
were thereafter transcribed under my direction into typewriting;
that the foregoing is a full, complete and true record of said
proceedings as bound by me at the time of filing.
The validity of the reporter's certification of
said transcript may be void upon disassembly and/or
removal from the court file.

____________/S/ Christine Triska_____________
Christine Triska, CSR 12826, RPR
Monday, November 29, 2011

Christine A. Triska, CSR 12826
Pro-Tem Reporter -- U.S. District Court
[phone]
Exhibit K
Page 542

1
2
3
4
5
6
7
8
9
10

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

11
12
13
14
15
16
17
18
19
20

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

ERNEST DEWAYNE JONES,
Petitioner,

Case No. CV-09-2158-CJC
DEATH PENALTY CASE

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25
26
27

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT L
TRANSCRIPT OF PROCEEDINGS FROM
TROY ADAM ASHMUS V. ROBERT K. WONG,
U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,
CASE NO. C93-0594 (NOV. 22, 2010)

28

Exhibit L
Page 543

1836
1

VOLUME 12

2

PAGES 1836 - 1895

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

BEFORE THE HONORABLE THELTON E. HENDERSON, JUDGE

6
7
8
9
10
11

TROY ADAM ASHMUS,

)
)
PETITIONER,
)
)
VS.
) NO. C 93-0594 TEH
)
ROBERT K. WONG, ACTING WARDEN OF
)
SAN QUENTIN STATE PRISON,
)
) SAN FRANCISCO, CALIFORNIA
RESPONDENT.
) MONDAY
) NOVEMBER 22, 2010
___________________________________) 1:00 O'CLOCK P.M.

12
13

TRANSCRIPT OF PROCEEDINGS

14

APPEARANCES:

15

FOR PETITIONER:

16
BY:
17

HABEAS CORPUS RESOURCE CENTER
303 SECOND STREET, SUITE 400 SOUTH
SAN FRANCISCO, CALIFORNIA 94107
MICHAEL LAURENCE, EXECUTIVE DIRECTOR
LORENA M. CHANDLER, ATTORNEY

18
FOR RESPONDENT:
19
20
BY:
21
22

OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
455 GOLDEN GATE AVENUE, 11TH FLOOR
SAN FRANCISCO, CALIFORNIA 94102
RONALD S. MATTHIAS, SENIOR ASSISTANT
ATTORNEY GENERAL
GLENN R. PRUDEN, SUPERVISING DEPUTY
GENERAL

23
24

REPORTED BY:

KATHERINE WYATT, CSR 9866, RMR, RPR
OFFICIAL REPORTER - US DISTRICT COURT

25

COMPUTERIZED TRANSCRIPTION BY ECLIPSE

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 544

925-212-5224

1837
1

NOVEMBER 22, 2010

1:00 O'CLOCK P.M.

2
3

P R O C E E D I N G S

4

THE COURT:

OKAY.

5

MR. MATTHIAS:

6

THE COURT:

GOOD AFTERNOON.

GOOD AFTERNOON, YOUR HONOR.

LET ME ANNOUNCE, AGAIN -- I THINK THERE'S

7

NO PROBLEM -- BUT SO THERE'S NO MISUNDERSTANDING, I'M OUT OF

8

HERE AT 2:30 BECAUSE OF OTHER COMMITMENTS.

9

LET'S TALK FIRST ABOUT EXHIBITS 225 AND 226.

RATHER

10

THAN HAVE A GENERAL DISCUSSION, LET ME HEAR FROM MR. MATTHIAS ON

11

HIS CONCERNS.

12

MAY HAVE A BRIEF REPLY.

13

WE WILL LET MR. LAURENCE RESPOND, AND THEN YOU

MR. MATTHIAS:

SURE.

225 AND 226, THESE ARE THE

14

SENSITIVITY STUDIES, SO CALLED. YOU KNOW, TO BE COMPLETELY

15

HONEST WITH YOU, FROM A STATISTICAL STANDPOINT, I CAN'T MAKE

16

HEADS OR TAILS OUT OF THEM.

17

BUT WHAT I CAN TELL IS THEY WERE GENERATED ON

18

NOVEMBER 2ND, WHICH IS THREE WEEKS AGO.

19

AFTER LUNCH, WHICH IS A LITTLE PERPLEXING.

20

AND I GOT THEM FRIDAY

I JUST WANT TO REMIND THE COURT THAT THIS HEARING WAS

21

TO HAVE BEEN COMPLETED ABOUT NINE MONTHS AGO, AND I DON'T THINK

22

THE UNFORTUNATE CIRCUMSTANCES THAT REQUIRED THAT THE PROCEEDING

23

BE CONTINUED CREATED SORT OF A WINDOW OF OPPORTUNITY FOR THE

24

PETITIONER TO GO GENERATE NEW DATA.

25

I MEAN, WE HAD A DISCOVERY CUTOFF.
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 545

WE HAD A POINT AT
925-212-5224

1838
1

WHICH DECLARATIONS FROM THE WITNESSES WHO WOULD TESTIFY ON

2

DIRECT WERE DUE, AND THAT WAS TO CONSTITUTE THEIR DIRECT

3

TESTIMONY.

4

SO SEEING A PIECE OF FAIRLY CAREFULLY TARGETED BUT

5

HIGHLY BELATED DATA IS -- IT'S REALLY HARD TO TALK, ACTUALLY,

6

ABOUT 225, 226 WITHOUT ALSO TALKING ABOUT 227, BECAUSE THEY --

7

WHICH COUNSEL HAS NOT ATTEMPTED TO INTRODUCE, AND MAY NOT.

8
9
10

BUT MUCH OF THIS STEMS FROM THE FACT THAT MR.
LAURENCE HAS KNOWN FOR MANY, MANY MONTHS THAT I INTENDED TO
CROSS-EXAMINE PROFESSOR BALDUS ABOUT SPECIFIC CASES.

11

AND MORE RECENTLY, HE ASKED ME TO IDENTIFY THOSE. AND

12

THE WAY HE PITCHED THIS TO ME WAS IT WILL MAKE THINGS GO MORE

13

SMOOTHLY.

14

AND, INDEED, IT WOULD, BECAUSE IF PROFESSOR BALDUS

15

HAD THE BENEFIT OF KNOWING THE NAMES OF THE CASES HE COULD PULL

16

THOSE PROBATION REPORTS, READ THEM AND NOT FUMBLE AROUND ON THE

17

STAND WITH LONG PERIODS OF STONEY SILENCE WHERE EVERYBODY ELSE

18

LOOKS AT EACH OTHER WHILE HE'S GIVEN A CHANCE TO LOOK THROUGH A

19

PROBATION REPORT.

20

SO IT WAS ON THE STRENGTH OF THAT REPRESENTATION THAT

21

I AGREED TO PROVIDE THAT INFORMATION IN ADVANCE. I MEAN, THIS IS

22

IN THE NATURE OF A COURTESY TO COUNSEL.

23

TO HAVE IT THEN USED AGAINST YOU SORT OF AS A PREEMPTIVE FORM OF

24

REBUTTAL.

25

IT'S NOT AN OPPORTUNITY

THAT'S NOT HOW I PRACTICE LAW, AND I DON'T LIKE IT
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 546

925-212-5224

1839
1

WHEN I SEE IT IN OTHERS. I THINK I NEED TO LEAVE IT AT THAT.

2

THAT WAS NOT AN INVITATION TO GO GENERATE NEW DATA. AND THAT'S

3

PARTICULARLY TRUE FOR 227, WHICH, I MEAN, IT'S NO COINCIDENCE

4

THAT IT ADDRESSES THE TEN CASES THAT I IDENTIFIED.

5

THAT WAS A COURTESY TO PROFESSOR BALDUS.

6

COURTESY TO COUNSEL AND TO THE COURT.

7

IT WAS A

TO BE EXPLOITED.

8
9
10

IT WASN'T AN INVITATION

AND 225 AND 226 IS FRANKLY MUCH, MUCH THE SAME. IT'S
OBVIOUS IT WAS IN LIGHT OF THE CASES IDENTIFIED, COUNSEL FELT
HE NEEDS TO SHORE UP HIS CASE.

11

NOW, THAT'S NOT WHAT YOU'RE ALLOWED TO DO JUST

12

BECAUSE I EFFECTIVELY DISCLOSED TO HIM IN ADVANCE SOME OF THE

13

AREAS ON WHICH I INTENDED TO CROSS-EXAMINE HIM.

14

I MEAN, I COULD HAVE SAID:

15

"NO.

16

COME TO COURT AND FIND OUT."

BUT THAT'S NOT HOW I PRACTICE LAW. AND, YOU KNOW, I

17

KNOW YOUR HONOR HAS BEEN ON THE BENCH MANY, MANY YEARS, AND YOU

18

KNOW BETTER THAN I THAT IN ORDER FOR THIS WHOLE PROCESS TO WORK,

19

COUNSEL HAVE TO BE CIVIL TO EACH OTHER AND RESPECTFUL. AND THEY

20

HAVE TO BE -- THEY HAVE TO BE ABLE TO RELY ON THEIR

21

EXPECTATIONS.

22

AND I DON'T WANT MY EXPERIENCE FROM THIS EPISODE TO

23

BE THAT I WON'T EXTEND COURTESIES ANYMORE BECAUSE IT ONLY HURTS

24

ME.

25

ADVANCE THE TEN CASES I WANTED TO TALK ABOUT.

AND THAT'S REALLY WHAT THIS IS ABOUT WHEN I DISCLOSED IN

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 547

925-212-5224

1840
1

IT'S NOT AN INVITATION TO BE ABUSED OR EXPLOITED. AND

2

I HOPE I DON'T SOUND TOO INDIGNANT ABOUT IT, BUT I'M QUITE

3

OFFENDED BY IT.

4

FROM THIS SIDE OF THE ROOM.

5

THAT IT NOT BE REWARDED.

AND IT'S THE KIND OF TACTIC THAT YOU DON'T SEE

6

THANK YOU.

7

THE COURT:

8

MR. MATTHIAS:

9

THE COURT:

AND I WOULD -- MY ONLY REQUEST IS

I'M SORRY.

THAT IT NOT BE?

REWARDED.

OH, REWARDED.

10

OKAY.

THANK YOU, COUNSEL.

11

MR. LAURENCE?

12

MR. LAURENCE:

YOUR HONOR, THE EXHIBITS WERE PRODUCED

13

IN ANTICIPATION OF CROSS-EXAMINATION AND FOR USE POSSIBLY IN

14

REDIRECT EXAMINATION.

15

THE ORDER OF THIS COURT WAS TO PROVIDE ALL EXHIBITS,

16

AND THE DIRECT TESTIMONY OF OUR EXPERTS AND OTHER WITNESSES,

17

PRIOR TO THE BEGINNING OF THE EVIDENTIARY HEARING. THERE WAS NO

18

ORDER THAT SUGGESTED THAT ALL EXHIBITS THAT WOULD BE USED IN

19

REBUTTAL OR REDIRECT EXAMINATION BE DISCLOSED.

20

AND IF YOU LOOK VERY CAREFULLY AT BOTH 224 AND 225,

21

WHICH THIS COURT FIRST ASKED US TO ADDRESS, THAT ANALYSIS WAS

22

PRODUCED ON NOVEMBER 22ND PRIOR TO MR. MATTHIAS IDENTIFYING THE

23

TEN CASES LAST TUESDAY NIGHT AS THE CASES THAT HE WAS

24

CROSS-EXAMINING -- HE WOULD BE INTENDING TO CROSS-EXAMINE MR.

25

BALDUS ABOUT.
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 548

925-212-5224

1841
1

THE IDEA THAT WE HAVE TO DISCLOSE ALTERNATIVE

2

THEORIES OR ALTERNATIVE DATA WHEN PROFESSOR BALDUS QUITE CLEARLY

3

EXPLAINED IN COURT THAT THE CASES THAT HE CODED HE BELIEVED HE

4

CODED CORRECTLY, THE IDEA THAT WE WOULD NOW HAVE TO SUGGEST HE

5

CODED THEM INCORRECTLY AND DISCLOSE WHAT EFFECT THAT INCORRECT

6

CODING WOULD HAVE SOMETIME IN THE PAST SEEMS TO ME TO BE

7

COMPLETELY BEYOND ANY EXPLANATION THAT THIS COURT'S ORDER WOULD

8

POSSIBLY HAVE REQUIRED.

9

ALL PROFESSOR BALDUS DID WAS TO LOOK AT TWO SPECIAL

10

CIRCUMSTANCES THAT HE THOUGHT, AS HE TESTIFIED, WERE THE MOST

11

SUBJECTIVE IN THEIR APPLICATION AND MAKE AN ASSUMPTION:

12

HAVE MADE A MISTAKE IN TEN CASES, WHAT EFFECT WOULD THAT HAVE?

13

IF I

NOW, HE WASN'T ADVOCATING THAT HE MADE THOSE MISTAKES

14

IN TEN CASES IN HIS DIRECT TESTIMONY. IT WASN'T EVEN RAISED IN

15

HIS DIRECT TESTIMONY.

16

QUESTION ON CROSS-EXAMINATION ABOUT HIS CODING DECISIONS.

17

IT WAS ENTIRELY IN ANTICIPATION TO A

AND THERE IS ABSOLUTELY NO LAW THAT SAYS WE HAVE TO

18

DISCLOSE REBUTTAL EVIDENCE OF WHEN THE QUESTION HASN'T EVEN BEEN

19

ASKED ON CROSS-EXAMINATION.

20

TO ACTUALLY MAKE THAT KIND OF CONCLUSION WOULD HAVE

21

US RUN ALL OF THIS ANALYSIS ABOUT THE STUDY BEING INCORRECT BACK

22

IN DECEMBER AND DISCLOSE IT TO THE RESPONDENT, WHICH IS

23

SOMETHING THAT I THINK CLEARLY THIS COURT DID NOT REQUIRE.

24

NOW, WITH RESPECT TO 227, FRIDAY WE HAD NO OBJECTION

25

TO 227. I DO HEAR AN OBJECTION TO 227 TODAY. AND I CAN HONESTLY
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 549

925-212-5224

1842
1

SAY TO YOUR HONOR IF THE TEN CASES HAD COME UP ONLY ON

2

CROSS-EXAMINATION, I WOULD HAVE ASKED FOR A BRIEF RECESS. WE

3

WOULD HAVE RECODED THOSE CASES AS NONDEATH ELIGIBLE, AND YOU

4

WOULD HAVE HAD EXACTLY THE SAME TESTIMONY.

5

THERE IS CERTAINLY NO REASON TO SUGGEST THAT

6

INFORMATION WOULD NOT HAVE COME OUT IN REDIRECT.

7

WOULD HAVE COME OUT IN REDIRECT.

8

INDIGNATION.

9

IT CERTAINLY

SO I DON'T UNDERSTAND THE

I CERTAINLY DON'T UNDERSTAND THE OBLIGATION FOR US TO

10

DISCLOSE EVERY PIECE OF PAPER THAT PROFESSOR BALDUS USED IN THE

11

FIVE YEARS OF CONDUCTING THIS STUDY WHEN ALL THAT WAS REQUIRED

12

WAS THE DATA THAT HE RELIED UPON, WHICH WE DID DISCLOSE.

13

AND WE VOLUNTARILY DISCLOSED THOUSANDS MORE PAGES, AS

14

YOU WILL SEE IN EXHIBIT 239, WHICH WE PROVIDED TO THE COURT THIS

15

MORNING.

16

THANK YOU.

17

THE COURT:

18

MR. MATTHIAS:

OKAY. DO YOU WANT TO RESPOND BRIEFLY?
WELL, I'LL CERTAINLY RESPOND IF THE

19

COURT HAS ANY QUESTIONS ABOUT ANY OF THIS. I MEAN, TO ME, 227 IS

20

BY FAR THE MORE INAPPROPRIATE. I CAN CLOSE MY EYES AND IMAGINE

21

HOW THEY MIGHT HAVE DECIDED IT WAS GOOD IDEA TO SHORE UP THEIR

22

CASE WITH 225 AND 226 WITHOUT ANY ADVANCE NOTICE.

23

I'LL ACCEPT THAT. 227 IS EXACTLY THE TEN CASES I

24

IDENTIFIED, WHICH I IDENTIFIED AS A COURTESY. I MEAN, I'M JUST

25

GOING TO REPEAT MYSELF, AND I AM NOT GOING TO.
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 550

I CHOOSE NOT TO
925-212-5224

1843
1

DO THAT, YOUR HONOR.

2

THIS IS NOT -- THIS IS PROFOUNDLY UNFAIR, AND IT IS

3

DYSFUNCTIONAL TO THE MISSION OF THIS COURT, WHICH IS TO RESOLVE

4

THIS CASE AS FAIRLY AS POSSIBLE ON THE MERITS.

5

TACTIC UNDERMINES THAT OBJECTIVE CONSIDERABLY.

6
7

THE COURT:

OKAY.

AND THAT KIND OF

I'M GOING TO TAKE THIS MATTER

UNDER SUBMISSION, COUNSEL.

8

OKAY. WHY DON'T WE PROCEED WITH OUR WITNESS?

9

MR. LAURENCE:

10

TO THE STAND.

11
12

WOULD YOU LIKE US TO STATE

THE COURT:

14

MR. LAURENCE:

16
17
18
19

YES.
MICHAEL LAURENCE, HABEAS CORPUS

RESOURCE CENTER FOR PETITIONER.
MS. CHANDLER:

LORENA CHANDLER, GOOD AFTERNOON, ON

BEHALF OF PETITIONER.
MR. MATTHIAS:

OH, PARDON ME.

RON MATTHIAS FOR

RESPONDENT.

20

MR. PRUDEN:

21

THE COURT:

22

OUR APPEARANCES FOR THE

RECORD?

13

15

PETITION FIRST CALLS GEORGE WOODWORTH

GLENN PRUDEN ON BEHALF OF RESPONDENT.
OKAY.

THANKS FOR REMEMBERING TO PUT THAT

ON THE RECORD, COUNSEL.

23

WOULD YOU SWEAR IN THE WITNESS?

24

THE CLERK:

25

(THEREUPON, THE WITNESS WAS SWORN.)

RAISE YOUR RIGHT HAND.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 551

925-212-5224

1844
1

WOODWORTH-DIRECT/LAURENCE
THE WITNESS: I DO.

2

THE CLERK:

3

MY NAME IS GEORGE WOODWORTH,

THE WITNESS:
W-O-O-D-W-O-R-T-H.

6

THE COURT:

7

MR. LAURENCE:

8

STATE YOUR NAME AND

SPELL YOUR LAST NAME FOR THE RECORD.

4
5

PLEASE HAVE A SEAT.

YOU MAY PROCEED WHEN YOU ARE READY.
THANK YOU, YOUR HONOR.

THEREUPON --

9

GEORGE WOODWORTH,

10

WAS CALLED AS A WITNESS ON BEHALF OF THE PETITIONER, AND AFTER

11

HAVING BEEN FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED AS

12

FOLLOWS:

13

DIRECT EXAMINATION

14

BY MR. LAURENCE

15

Q.

GOOD AFTERNOON, DR. WOODWORTH.

16

A.

GOOD AFTERNOON.

17

Q.

DID YOU PROVIDE A DECLARATION REGARDING TROY ASHMUS EARLIER

18

THIS MONTH?

19

A.

I DID.

20

Q.

I ASK YOU TO LOOK AT PETITIONER'S EXHIBIT 218, WHICH IS IN

21

THE BINDER ON YOUR RIGHT, AND ASK YOU IF THAT IS THE DECLARATION

22

YOU PROVIDED?

23

A.

YES.

24

MR. LAURENCE:

25

THE COURT:

YOUR HONOR, I'D MOVE TO ADMIT 218.

218 WILL BE ADMITTED.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 552

925-212-5224

1845
WOODWORTH-DIRECT/LAURENCE
(THEREUPON, PETITIONER'S EXHIBIT 218 WAS ADMITTED INTO

1
2

EVIDENCE.)

3

BY MR. LAURENCE

4

Q.

5

OF YOUR EDUCATION AND QUALIFICATIONS?

6

A.

IT DOES.

7

Q.

DOES IT ALSO CONTAIN A RELATIVELY RECENT COPY OF YOUR

8

CURRICULUM VITAE?

9

A.

YES.

10

Q.

HAVE YOU TESTIFIED IN COURT PROCEEDINGS BEFORE AS AN EXPERT?

11

A.

YES, I HAVE.

12

Q.

AND WHAT TYPES OF CASES HAVE YOU TESTIFIED IN?

13

A.

THE FIRST ONE WAS MCCLESKEY, AND IT'S -- THAT WAS THE

14

BEGINNING OF MY RESEARCH PARTNERSHIP WITH PROFESSOR BALDUS.

15
16

DR, WOODWORTH, DOES THIS DECLARATION CONTAIN A DESCRIPTION

SUBSEQUENTLY, I HAVE TESTIFIED IN AGE AND RACE
DISCRIMINATION IN EMPLOYMENT AND IN CAPITAL SENTENCING.

17

MR. LAURENCE:

OKAY.

YOUR HONOR, I MOVE TO HAVE DR.

18

WOODWORTH QUALIFIED AS AN EXPERT IN STATISTICS AND STATISTICAL

19

METHODOLOGY.

20

THE COURT:

I'LL FIND HIM SO QUALIFIED.

21

BY MR. LAURENCE

22

Q.

DR. WOODWORTH, WHAT WAS YOUR ROLE IN THIS STUDY?

23

A.

I WAS THE SENIOR STATISTICIAN.

24

Q.

AND DID YOU EMPLOY PRACTICES IN THAT CAPACITY --

25

STATISTICAL METHODS IN THAT CAPACITY?
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 553

925-212-5224

1846
WOODWORTH-DIRECT/LAURENCE
1

A.

YES.

2

Q.

ARE ANY OF THE PRACTICES THAT YOU EMPLOYED IN THIS STUDY NOT

3

CONSIDERED GENERALLY ACCEPTABLE?

4

A.

NO.

5

Q.

DID YOU EMPLOY ANY INVOLVE PRACTICES?

6

A.

NO, I DID NOT.

7

Q.

HOW WOULD YOU DESCRIBE THOSE PRACTICES?

8

A.

THIS IS A TABULATION. THERE IS NO ATTEMPT TO MODEL A SYSTEM.

9

IT'S SIMPLY A TABULATION OF THE -- THIS POPULATION AS IT IS.

THEY ARE ALL CONSIDERED GENERALLY ACCEPTABLE.

10

Q.

11

BALDUS ON NOVEMBER 19TH?

12

A.

YES, I WAS.

13

Q.

DID YOU HEAR THE QUESTIONS CONCERNING THE SAMPLING

14

METHODOLOGY USED IN THE STUDY?

15

A.

I HEARD MANY OF THEM, YES.

16

Q.

AND IN LIGHT OF THOSE QUESTIONS DO YOU HAVE ANY CONCERNS

17

ABOUT THE SAMPLING DESIGN THAT YOU USED IN THIS STUDY?

18

A.

NONE AT ALL.

19

Q.

OKAY. THANK YOU.

20

OKAY. THE WERE YOU PRESENT DURING THE TESTIMONY OF PROFESSOR

YOUR DECLARATION TALKS ABOUT THE SUPPLEMENTAL

21

HOMICIDE REPORT DATA THAT WAS USED IN TABLE ONE IN YOUR

22

DECLARATION AND FIGURE ONE IN EXHIBIT 219.

23

DID YOU ANALYZE THE SUPPLEMENTAL HOMICIDE REPORT DATA

24

WITH DATA FROM YOUR OWN STUDY?

25

A.

I COMBINED THE TWO, YES.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 554

925-212-5224

1847
1

Q.

WOODWORTH-DIRECT/LAURENCE
AND HOW DID YOU CONDUCT THAT ANALYSIS?

2

A.

THE SUPPLEMENTAL HOMICIDE FIGURES ON DEATH ELIGIBILITY WERE

3

BASED ON GENERIC SPECIAL CIRCUMSTANCES OR AGGRAVATING

4

CIRCUMSTANCES, IF YOU PREFER. IN PARTICULAR, THOSE SHR FIGURES

5

UNDERCOUNTED THE LYING-IN-WAIT CIRCUMSTANCE AND OVERCOUNTED THE

6

GANG-RELATED CIRCUMSTANCE.

7

Q.

AND SO?

8

A.

AND SO I CORRECTED -- I CORRECTED THE SHR FOR THOSE OVER AND

9

UNDER COUNTS.

10

Q.

AND THAT'S HOW YOU ARRIVED AT THE 50.3 PERCENT DEATH

11

ELIGIBILITY RATE THAT'S CONTAINED IN YOUR DECLARATION?

12

A.

THAT'S CORRECT.

13

Q.

BASED ON THE METHODOLOGY THAT YOU USED IN YOUR STUDY IN

14

COMPARING THE AVAILABLE DATA FROM OTHER STATES, HAVE YOU REACHED

15

ANY CONCLUSIONS REGARDING WHERE CALIFORNIA'S DEATH-ELIGIBILITY

16

RATES RANK?

17

A.

18

DEVIATIONS ABOVE THE AVERAGE.

19

Q.

20

STANDARD DEVIATION IS?

21

A.

22

INDIVIDUAL DIFFERENCES, IF YOU LIKE, AMONG THE OBJECTS BEING

23

TABULATED. IN A NORMAL DISTRIBUTION, 95 PERCENT OF THE CASES ARE

24

WITHIN TWO STANDARD DEVIATIONS. 99-AND-A-HALF WITHIN -- AND 99.7

25

WITHIN THREE STANDARD DEVIATIONS.

IT RANKS HIGHEST, AND IT IS ABOUT 3.7 SIGMA, 3.7 STANDARD

WHEN YOU SAY "STANDARD DEVIATIONS," CAN YOU EXPLAIN WHAT A

A STANDARD DEVIATION IS A MEASURE OF VARIABILITY OR

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 555

925-212-5224

1848
WOODWORTH-DIRECT/LAURENCE
IN THIS CASE, WE OBSERVED 3.7 STANDARD DEVIATIONS.

1
2

AND A DEVIATION THAT LARGE OCCURS ONLY ONCE IN 10,000 CASES.

3

Q.

4

THAT YOU'VE DESCRIBED IN TERMS THAT I MIGHT UNDER BY TRYING TO

5

GIVE US A COMPARISON WITH IQ SCORES?

6

A.

7

100, AND A STANDARD DEVIATION OF 15. 3.7 STANDARD DEVIATIONS

8

WOULD CORRESPONDENCE TO AN IQ OF ABOUT 45.

9

Q.

CAN YOU HELP ME UNDERSTAND THE STANDARD DEVIATION ANALYSIS

WELL, IQ IS STANDARDIZED TO HAVE AN AVERAGE OF -- A MEAN OF

SO 45 AS IN -- IT WOULD BE THE EQUIVALENT OF 45 IQ WHERE THE

10

MEAN IS 100?

11

A.

IT WOULD BE THAT DEVIANT.

12

Q.

OKAY.

13

THIS AFTERNOON -- ABOUT THE SENSITIVITY ANALYSIS. AND LET ME

14

FIRST ASK YOU:

15

A.

I DID.

16

Q.

AND IF I'D ASKED YOU TO COMPUTE ANY STATISTICS REGARDING

17

DEATH ELIGIBILITY, WOULD YOU HAVE BEEN ABLE TO DO SO?

18

A.

YES.

19

Q.

AND IF I'D ASKED YOU TO CHANGE, FOR EXAMPLE, TEN CASES FROM

20

DEATH-ELIGIBLE TO NONDEATH-ELIGIBLE, WOULD YOU HAVE BEEN ABLE TO

21

DO SO?

22

A.

NO PROBLEM.

23

Q.

HOW LONG WOULD IT HAVE TAKEN YOU?

24

A.

FIFTEEN OR 20 MINUTES.

25

Q.

THANK YOU.

NOW, WE TALKED A LITTLE BIT THIS MORNING -- I MEAN,

DID YOU HAVE YOUR LAPTOP WITH YOU ON FRIDAY?

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 556

925-212-5224

1849
WOODWORTH-DIRECT/LAURENCE
NOW, YOU DID CONDUCT THAT ANALYSIS PRIOR TO FRIDAY.

1
2

A.

I DID.

3

Q.

HOW DID YOU PERFORM THAT ANALYSIS?

4

A.

IN DETAIL, I LOGGED INTO A COMPUTER AT THE UNIVERSITY OF

5

IOWA, AND CHANGED THE CODING USING LOGIC, AND RERAN AN ANALYSIS

6

I'D PREVIOUSLY RUN.

7

Q.

8

PETITIONER'S 227, WHICH IS ON YOUR LEFT SIDE.

9

A.

I'M SORRY. WHAT NUMBER?

10

Q.

I'M SORRY, 227.

11

A.

227, I SEE IT.

OKAY. SO LET ME ACTUALLY DIRECT YOUR ATTENTION TO

12

I HAVE IT.

13

Q.

14

OF YOUR ANALYSIS?

15

A.

YES.

16

Q.

AND DOES THAT FIRST PAGE REFLECT THE RESULTS OF YOUR

17

ANALYSIS?

18

A.

19
20

DOES THAT CONTAIN -- DOES THAT EXHIBIT CONTAIN THE RESULTS

YES, IT DOES.
MR. LAURENCE:

YOUR HONOR, I WOULD MOVE TO ADMIT 227

AT THIS POINT.

21

THE COURT:

I'LL TAKE THAT UNDER SUBMISSION, COUNSEL.

22

MR. LAURENCE:

OKAY. AND, YOUR HONOR, I'D JUST LIKE

23

TO LAY THE FOUNDATION FOR 225 AND 226, UNDERSTANDING YOU'VE

24

TAKEN THAT UNDER ADVISEMENT, AS WELL.

25
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 557

925-212-5224

1850
WOODWORTH-DIRECT/LAURENCE
1

BY MR. LAURENCE

2

Q.

3

EFFECT OF THE ERRONEOUS CODING OF SPECIAL CIRCUMSTANCES?

4

A.

THAT IS WHAT THE SENSITIVITY ANALYSIS IS.

5

Q.

RIGHT.

DID YOU CONDUCT ANY ANALYSTS OF THE DATA TO DETERMINE THE

6

AND I'D LIKE YOU TO TAKE A LOOK AT -- OH, I'M SORRY.

7

LET ME GO BACK.

8

INTERPRET 227, LET ME MAKE SURE THE RECORD IS CLEAR ABOUT HOW TO

9

INTERPRET 227.

10

ON THE FIRST PAGE OF 227, IT BEGINS:

11

"TABLE TWO, UNMODIFIED DATA, OCTOBER, 2010

12
13

227, SINCE COUNSEL WAS NOT -- UNABLE TO

DATABASE," CORRECT?
A.

OH, I'M SORRY. I THINK YOU HAVE THE WRONG NUMBER.

14

OH, I'M SORRY. I HAVE IT. I WITHDRAW THAT STATEMENT.

15

Q.

16

FROM THE DATABASE.

17

A.

18

PROFESSOR BALDUS' DECLARATION. THIS IS WHAT THE UNDERLYING

19

COMPUTER OUTPUT LOOKS LIKE.

20

PRODUCED PROFESSOR BALDUS' TABLE TWO.

21

Q.

22

THAT CARLOS WINDOW OF DEATH ELIGIBILITY RATES?

23

A.

YES.

24

Q.

AND THAT'S .9116?

25

WHAT DOES THIS FIRST PAGE TELL US?

THIS IS UNMODIFIED DATA

THAT IS DATA THAT WAS COMPILED IN TABLE TWO, PART ONE OF

SO THIS WOULD BE THE RUN THAT

AND WHEN IT SAYS UNDER "01 CONVICT EQUALS 1CWDE RATE," IS

MR. MATTHIAS:

EXCUSE ME, YOUR HONOR.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 558

THIS IS NOT A
925-212-5224

1851
1

WOODWORTH-DIRECT/LAURENCE
FOUNDATION FOR THE TESTIMONY. THIS IS THE EVIDENCE ITSELF.

2

JUST RECITING THE VERY EVIDENCE THAT YOUR HONOR HAS INDICATED

3

IT'S TAKING UNDER SUBMISSION.

4

AWAITING YOUR RULING.

5

MR. LAURENCE:

IT'S

SO THIS IS SORT OF AN END RUN ON

YOUR HONOR, I'M JUST ACTUALLY

6

EDUCATING COUNSEL FOR RESPONDENT.

I HAVE ACTUALLY READ THIS,

7

AND CERTAINLY IF IT'S ADMITTED WILL BE ABLE TO USE IT WITHOUT

8

ANY FURTHER EXPLANATION.

9

MR. MATTHIAS:

NATURALLY, I WON'T NEED TO BE EDUCATED

10

IF IT'S PROPERLY EXCLUDED SO --

11

THE COURT:

OKAY.

12

BY MR. LAURENCE:

13

Q.

14

DATA, CORRECT?

15

A.

YES.

16

Q.

AND THEN, THE REST OF THE EXHIBIT IS YOU RUNNING THE CHANGES

17

BY CHANGING TEN CASES FROM DEATH ELIGIBLE TO NONDEATH ELIGIBLE,

18

CORRECT?

19

A.

THE FIRST FOUR PAGES ARE UNMODIFIED.

20

Q.

OH, I'M SORRY.

21

A.

AND THEN, THE NEXT FOUR PAGES, WHICH I LABELED

22

"HYPOTHETICAL," THEY ARE LABELED IN PARALLEL WITH THE FIRST

23

FOUR, BUT WITH THE WORD "HYPOTHETICAL" APPENDED.

24

THE ONES WITH THE TEN CASES --

25

Q.

BUT THE FIRST PAGE IS UNWEIGHTED -- I MEAN IS UNMODIFIED

AND THESE ARE

SO --

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 559

925-212-5224

1852
1

A.

WOODWORTH-DIRECT/LAURENCE
-- NOTED AS NOT DEATH ELIGIBLE.

2

Q.

SO THE FIRST FOUR PAGES ARE UNMODIFIED.

3

REST OF THE EXHIBIT ARE THE MODIFIED BY HAVING THE TEN CASES BE

4

DESIGNATED AS NONDEATH ELIGIBLE.

5

A.

THAT'S RIGHT.

6

Q.

THANK YOU.

7

A.

OKAY.

8

Q.

NOW, IS THIS THE SENSITIVITY ANALYSIS THAT YOU CONDUCTED

9

REGARDING SOLELY CLASSIFIED LYING-IN-WAIT SPECIAL CIRCUMSTANCE

THE NEXT -- THE

AND I'D LIKE YOU TO TURN TO EXHIBIT 226.

10

CASES?

11

A.

YES.

12

Q.

CAN YOU EXPLAIN WHAT YOU DID TO CREATE THIS EXHIBIT?

13

A.

THE DETAILS OF WHAT I DID CAN BE DETERMINED BY LOOKING AT

14

THE NEXT PAGE OF THIS EXHIBIT. THIS IS A TYPICAL ONE OF THE TEN

15

RUNS THAT I DID THE TEN REPLICATIONS OF THIS DELETION PROCESS,

16

RECODING PROCESS THAT I RAN.

17

UNDER THE HEADING "PROJ," WHICH IS THE IDENTIFICATION

18

NUMBER OF THE CASES, THESE ARE 25 RANDOMLY SELECTED CASES THAT

19

HAD A LYING-IN-WAIT SPECIAL CIRCUMSTANCE PRESENT, CODED AS

20

PRESENT.

21

THOSE 25 CASES WERE SELECTED AT RANDOM, AND THE

22

CODING WAS CHANGED TO ZERO.

23

NARROWING MEASURE.

24

APPEARS IN PROFESSOR BALDUS' TABLE TWO.

25

AND THEN, WE RECALCULATED THE

AND THIS IS THE SAME NARROWING MEASURE THAT

THE NARROWING MEASURES ARE SHOWN AS THE -- FOR
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 560

925-212-5224

1

1853
WOODWORTH-DIRECT/LAURENCE
EXAMPLE, IN RUN NUMBER ONE, WHICH IS THE ONE I JUST ALLUDED TO,

2

THE NARROWING MEASURE AFTER RECODING THOSE NUMBERS WAS 54.2,

3

WHICH IS EIGHT-TENTHS OF A PERCENTAGE POINT BELOW THE NUMBER IN

4

PROFESSOR BALDUS' TABLE TWO, WHICH WAS 55 PERCENT.

5

Q.

6

PROJECT CASES YOU DESCRIBED IS ON PAGE TWO OF THAT EXHIBIT.

7

A.

THIS IS RUN NUMBER ONE.

8

Q.

RIGHT.

9

CORRECT?

OKAY. SO JUST TO BE CLEAR FOR RECORD, THE PROJECT, THE 25

RUN NUMBER ONE IS ON PAGE TWO OF THE EXHIBIT,

10

A.

RIGHT.

11

Q.

AND ON PAGE THREE YOU HAVE THE RESULTS OF CHANGING DEATH

12

ELIGIBILITY FOR THOSE 25 CASES.

13

A.

THAT'S RIGHT.

14

Q.

AND THE 54 PERCENT YOU REFERRED TO IS AT THE VERY BOTTOM SET

15

OF THOSE TABLES.

16

IT SAYS:

"CWDE RATE CARLOS WINDOW DEATH ELIGIBILITY RATE,"

17

WHICH IS .417?

18

A.

.5417.

19

Q.

.5417.

20

A.

YES.

21

Q.

EXCUSE ME.

22

CARLOS -- I MEAN, THESE WERE SPECIAL CIRCUMSTANCES OF LYING IN

23

WAIT WERE CODED FOR THESE CASES.

24

ON PAGE TWO OF THIS EXHIBIT?

25

A.

NOW, DOES THE -- AND YOU SAID THAT THESE ARE

WHAT DOES A UNIQUE WORD MEAN

IT MEANS THAT WAS THE ONLY SPECIAL PRESENT.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 561

925-212-5224

1854
WOODWORTH-DIRECT/LAURENCE
OKAY. SO 25 CASES WHERE LYING IN WAIT WAS THE ONLY SPECIAL,

1

Q.

2

THOSE CASES WERE THEN CHANGED FROM DEATH ELIGIBLE TO NONDEATH

3

ELIGIBLE?

4

A.

CORRECT.

5

Q.

DOES PAGE ONE OF THIS EXHIBIT CONTAIN THE RESULTS OF THESE

6

TEN DIFFERENT RUNS?

7

A.

YES.

8

Q.

THANK YOU.

9

I'D LIKE YOU TO TURN NOW TO EXHIBIT 225, WHICH IS A

10

SENSITIVITY ANALYSIS FOR CASES UNIQUELY CODED FOR TORTURE.

11

A.

YES.

12

Q.

IS YOUR TESTIMONY CONCERNING 226 THE SAME AS -- IF I ASKED

13

YOU THE SAME QUESTIONS FOR 225, WOULD THE SAME QUESTIONS BE

14

ANSWERED --

15

A.

YES.

16

Q.

-- THE SAME?

17

A.

THE ONLY CHANGE IS THE SPECIAL.

18

Q.

SO THE ONLY CHANGE ARE SPECIALS.

19

THE ANALYSIS?

20

A.

YES.

21

Q.

NOW, AGAIN, THESE -- THESE ANALYSES WERE CONDUCTED IN

22

BOTH -- IN 226, 227 AND 225, ASSUME THAT ALL CODING MISTAKES ARE

23

MADE IN FAVOR OF DEATH ELIGIBILITY, CORRECT?

24

A.

YES.

25

Q.

WORSE CASE SCENARIO.

AND THEN, THE RESULTS OF

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 562

925-212-5224

1855
WOODWORTH-CROSS/MATTHIAS
1

A.

2

Q.

UM-HUM.
OKAY.

3

MR. LAURENCE:

4

THE COURT:

5

CROSS?

6

MR. MATTHIAS:

7

THANK YOU, YOUR HONOR.

THANK YOU, COUNSEL.

THANK YOU, YOUR HONOR.

CROSS-EXAMINATION

8

BY MR. MATTHIAS

9

Q.

GOOD AFTERNOON, PROFESSOR WOODWORTH.

10

A.

GOOD AFTERNOON.

11

Q.

AND CONGRATULATIONS, AGAIN, ON YOUR RECENT RETIREMENT.

12

A.

THANK YOU.

13

Q.

THESE LATE-GENERATED REPORTS, WAS SOME EXPLANATION PROVIDED

14

TO YOU FOR WHY YOU SHOULD DO THEM?

15

A.

UM --

16

Q.

I MEAN, HOW WAS IT YOU SETTLED ON THE TEN CASES THAT I

17

IDENTIFIED AS THE ONES I WOULD CROSS-EXAMINE PROFESSOR BALDUS

18

ABOUT?

19

TORTURE AND LYING-IN-WAIT, AS OPPOSED TO ANY OTHER NUMBER OF

20

SPECIAL CIRCUMSTANCES?

21

AND HOW IS IT THAT YOU CAME TO FOCUS SPECIFICALLY SO

HOW WAS THAT EXPLAINED TO YOU, IS MY QUESTION.

22

A.

OKAY. YOU HAVE TWO QUESTIONS THERE.

23

DID I SETTLE ON THE TEN CASES.

24

GIVEN THE LIST THAT YOU HAD PROVIDED.

25

Q.

THE FIRST ONE IS:

HOW

AND THAT IS SPECIFICALLY I WAS

WAS SOME EXPLANATION PROVIDED TO YOU OF WHAT THAT LIST WAS

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 563

925-212-5224

1856
1

WOODWORTH-CROSS/MATTHIAS
OR WHERE IT HAD BEEN DERIVED FROM?

2

A.

YES, IT WAS.

3

Q.

AND WHAT WAS SAID TO YOU ABOUT THAT?

4

A.

THAT THOSE WERE THE CASES YOU WERE INTERESTED IN

5

CROSS-EXAMINING PROFESSOR BALDUS ABOUT.

6

Q.

7

DID COUNSEL EXPLAIN TO YOU WHY HE WAS PARTICULARLY INTERESTED IN

8

HAVING YOU DO A SENSITIVITY ANALYSIS THAT WAS SPECIFIC TO THOSE

9

TWO SPECIAL CIRCUMSTANCES AS OPPOSED TO THE OTHER SPECIAL

AND NOW, WITH RESPECT TO THE TORTURE AND THE LYING-IN-WAIT,

10

CIRCUMSTANCES?

11

A.

12

AND THEN HE SAID IT WAS BECAUSE THOSE WERE THE -- AND I QUOTE:

13

ACTUALLY, IT WAS PROFESSOR BALDUS WHO EXPLAINED IT TO ME,

"ROUGHLY THE MOST SUBJECTIVE FROM THE POINT OF

14

VIEW OF CODING."

15

AND HE WANTED SOME CONFIDENCE THAT EVEN AN

16

UNREASONABLY LARGE NUMBER OF CODING ERRORS, EVEN AN

17

INCREDIBLE -- I USE THAT IN THE LITERAL SENSE -- EVEN AN

18

INCREDIBLE NUMBER OF CODING ERRORS THAT THE RESULTS WOULD HAVE

19

BEEN RELATIVELY ROBUST.

20

Q.

21

RELATED STUDIES HOW MANY TIMES?

22

A.

23

THE CASES THAT WE HAVE BEEN INVOLVED IN:

24

JERSEY, PHILADELPHIA COUNTY, THIS CASE, AND WE ALSO COLLABORATED

25

ON A STUDY OF THE MILITARY CAPITAL SENTENCING SYSTEM.

YOU AND PROFESSOR BALDUS HAVE COLLABORATED IN DEATH PENALTY

I'VE LOST COUNT.

WE'VE WRITTEN MANY PAPERS. HE ENUMERATED
NEBRASKA, GEORGIA, NEW

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 564

925-212-5224

1857
1

Q.

WOODWORTH-CROSS/MATTHIAS
SO HOW MANY WOULD YOU ESTIMATE IT WOULD BE?

2

A.

FIVE OR SIX.

3

Q.

OKAY. AND HAVE YOU, LIKE PROFESSOR BALDUS, TAKEN SIDES IN

4

THE DEATH PENALTY DEBATE?

5

A.

I DON'T UNDERSTAND THE QUESTION.

6

Q.

WELL, NO. IT'S THE DEATH PENALTY, LIKE A LOT OF OTHER ISSUES

7

ON THE FOREFRONT OF AMERICAN PUBLIC LIFE, IS SOMETHING PEOPLE

8

DEBATE PRETTY OPENLY.

9

TAKE SIDES IN A FORUM?

IS THAT ONE OF THOSE ISSUES ON WHICH YOU'VE DEVELOPED

10

FEELINGS?

11

A.

12

IT.

13

Q.

AND WHAT ARE THEY?

14

A.

I THINK IT'S AN INEFFICIENT WAY TO ACHIEVE A PUBLIC GOOD,

15

WHICH IS TO INCAPACITATE DANGEROUS PEOPLE.

16

Q.

17

THE SUPREME COURT'S TREATMENT OF STATISTICAL EVIDENCE.

18

HAVE SUGGESTED THAT THAT DECISION UNDERMINES BASIC NOTIONS OF

19

EQUAL JUSTICE IN THE ADMINISTRATION OF DEATH SENTENCING SYSTEMS

20

IN THIS COUNTRY.

IT WOULD BE HARD TO AVOID IT, YES.

I HAVE FEELINGS ABOUT

YOU HAVE WRITTEN ON THIS SUBJECT, AND YOU'VE COMMENTED ON

21

AND YOU

DO YOU STILL HOLD THAT VIEW?

22

A.

I AGREE WITH THOSE WORDS WHICH WERE WRITTEN BY PROFESSOR

23

BALDUS.

24

Q.

ACTUALLY, THEY WERE WRITTEN BY YOU.

25

A.

IN WHAT?

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 565

925-212-5224

1858
WOODWORTH-CROSS/MATTHIAS
IN AN ARTICLE YOU WROTE: "EXPERIENCES OF AN EXPERT

1

Q.

2

WITNESS."

3

A.

4

YES, I DON'T RETRACT THOSE WORDS, NO.

5

Q.

OH, THEN I WAS PERHAPS PLAGIARIZING PROFESSOR BALDUS. BUT,

OKAY. THANKS.

6

NOW, DEATH ELIGIBILITY FOR PURPOSES OF THIS STUDY HAS

7

BEEN DEFINED IN A CERTAIN WAY.

AND I TAKE IT YOU HAD NO

8

PERSONAL ROLE IN SETTLING ON THAT DEFINITION; IS THAT CORRECT?

9

A.

NOT MY PAID RATE, AS THEY SAY.

10

Q.

SO THAT WAS SOMETHING THAT WAS DECIDED ENTIRELY BETWEEN

11

PROFESSOR BALDUS AND HCRC, CORRECT?

12

A.

13

DECIDED.

14

Q.

THE DEFINITION OF DEATH ELIGIBILITY.

15

A.

I COULDN'T SAY THAT PROFESSOR BALDUS CONSULTED HCRC. I HAVE

16

NO DIRECT KNOWLEDGE OF THAT.

17

Q.

18

WITH IT ON HIS OWN?

19

A.

20

WHERE THAT DEFINITION CAME FROM.

21

Q.

22

PROJECT WAS DEFINING "DEATH ELIGIBLE" IN A WAY THAT INCLUDED A

23

VERY LARGE NUMBER OF PEOPLE AS TO WHOM THE CHANCE OF BEING

24

SENTENCED TO DEATH WAS ACTUALLY ZERO, CORRECT?

25

A.

REPEAT WHAT IT WAS THAT YOU WERE ASKING ME ABOUT THAT WAS

OKAY. IS IT YOUR BELIEF, THEN, THAT PROFESSOR BALDUS CAME UP

ALL I'M EXPRESSING IS THAT I HAVE NO DIRECT KNOWLEDGE OF

OKAY.

BUT AT SOME POINT YOU DID COME TO REALIZE THAT THE

NO, I DON'T.

I HAVE NO SUCH UNDERSTANDING.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 566

925-212-5224

1859
WOODWORTH-CROSS/MATTHIAS
YOU DON'T UNDERSTAND THAT TO BE THE CASE?

1

Q.

YOU DON'T?

2

A.

I HAVE NO SUCH UNDERSTANDING, NO.

3

Q.

WELL, DO YOU HAVE A DIFFERENT UNDERSTANDING ON THAT POINT?

4

A.

NO.

5

Q.

OKAY.

6

A.

I'M NOT QUALIFIED TO OPINE ON THAT POINT.

7

Q.

WELL, YOU'VE SAID, FOR EXAMPLE, THAT YOU KNOW -- IN YOUR

8

DECLARATION YOU SAID YOU KNOW THAT CALIFORNIA'S DEATH PENALTY,

9

CALIFORNIA'S LYING-IN-WAIT SPECIAL CIRCUMSTANCE IS BROAD.

10

A.

UM-HUM.

11

Q.

SO YOU DO HAVE -- I ASSUME THROUGH YOUR WORK ON THIS

12

PROJECT, YOU'VE ACQUIRED A FEEL FOR THIS MATERIAL?

13

A.

14

IN THE SHR, THE ANALOGOUS SPECIAL CIRCUMSTANCE, WHICH IS

15

SNIPING.

16

Q.

17

NUMBERS AND CREATING THESE CHARTS, WHICH I ASSUME IS SOMETHING

18

YOU DID DO; IS THAT CORRECT?

19

A.

YES, I PROVIDED HIM WITH THE UNDERLYING DATA.

20

Q.

AND YOU SAW THE RAW NUMBERS?

21

A.

I PROVIDED THE RAW NUMBERS.

22

Q.

YOU KNEW WHAT SOME OF THOSE PEOPLE HAD BEEN CONVICTED OF AND

23

WHAT THEY HAD NOT BEEN CONVICTED OF WHEN YOU WERE CREATING THE

24

DEATH ELIGIBILITY RATIO BY PUTTING A NUMERATOR OVER A

25

DENOMINATOR.

IT IS RELATIVELY BROADER THAN THE SPECIAL CIRCUMSTANCE USED

SO WHEN YOU ASSIST PROFESSOR BALDUS IN TABULATING THESE

YOU KNEW THE DENOMINATOR INCLUDED PEOPLE WHO HAD

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 567

925-212-5224

1860
1

WOODWORTH-CROSS/MATTHIAS
NOT BEEN CONVICTED OF CAPITAL MURDER.

2

A.

YES.

3

Q.

OKAY.

4

PEOPLE AS TO WHOM THE DEATH PENALTY IN THE REAL WORLD POSED A

5

CHANCE OF ZERO.

6

A.

7

OF ART FOR ME. I DON'T KNOW HOW YOU'RE COMING UP WITH THAT.

8

Q.

9

ACKNOWLEDGED THAT THE DENOMINATOR INCLUDED PEOPLE AS TO WHOM THE

SO YOU UNDERSTOOD THAT THAT DENOMINATOR INCLUDED

NO, I DON'T AGREE WITH "THE CHANCE OF ZERO."

THAT'S A WORD

WELL, WHEN I SPOKE WITH PROFESSOR BALDUS AND ASKED HIM, HE

10

CHANCE OF DEATH WAS ZERO BY VIRTUE OF WHAT THEY HAD BEEN

11

CONVICTED OF.

12

HIM:

13

I WENT THROUGH A SERIES OF QUESTIONS, AND I ASKED

"WHAT IS THE CHANCE OF SUFFERING THE DEATH

14

PENALTY IF YOU'RE CONVICTED, FOR EXAMPLE, OF

15

VOLUNTARY MANSLAUGHTER?"

16

I ASKED FOUR QUESTIONS IN SUCCESSION, AND HE

17

ACKNOWLEDGED EACH TIME THAT THE CHANCE OF DEATH, OF A DEATH

18

SENTENCE UNDER CALIFORNIA LAW IN THOSE INSTANCES WAS ZERO.

19

NOW, I ASSUMED YOU HAD THAT SAME UNDERSTANDING.

BUT

20

IF YOU DON'T, I'LL MOVE ON. I THOUGHT YOU KNEW THAT. AM I WRONG?

21

A.

22

THIS, AS I UNDERSTOOD IT, WAS AN APPLICATION OF A BODY OF LAW TO

23

THE FACTS OF A BODY OF CASES.

24

Q.

OKAY.

25

A.

AND IT HAD NOTHING TO DO WITH THE ACTUAL OUTCOMES IN THESE

PROFESSOR BALDUS AND I HAVE NEVER DISCUSSED THIS POINT.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 568

925-212-5224

1861
WOODWORTH-CROSS/MATTHIAS
1

CASES.

2

Q.

3

YOU PROVIDED STATISTICAL SUPPORT OF SOME SORT IN CONNECTION WITH

4

MEDICAL CLINICAL TRIALS; IS THAT CORRECT?

5

A.

CORRECT.

6

Q.

AND WHAT IS IT THAT YOU HAVE DONE?

7

STUDIES OR SIMPLY ASSISTED IN THE TABULATION?

8

DESCRIBE THAT ROLE?

9

A.

I HAVE DESIGNED SEVERAL STUDIES OF ANTIHISTAMINES.

10

Q.

AND YOU DID THIS ON BEHALF OF A PHARMACEUTICAL COMPANY?

11

A.

I WAS UNDER CONTRACT WITH A LOCAL CLINICAL TRIAL MANAGEMENT

12

FIRM IN IOWA CITY --

13

Q.

WERE YOU --

14

A.

-- WITH --

15

Q.

SORRY.

16

A.

-- WITH A FORMER MEDICAL SCHOOL FACULTY MEMBER WITH WHOM I

17

HAD HAD A RESEARCH RELATIONSHIP.

18

Q.

19

THE ISSUE OF THE COMPOSITION OF THE SUBJECT POPULATION, OF THE

20

TEST POPULATION?

21

A.

22

IS DETERMINED BY WHAT ARE CALLED "ENTRY AND EXCLUSION CRITERIA,"

23

WHICH ARE TYPICALLY DEFINED IN MEDICAL TERMS.

24
25

OKAY. I SEE FROM YOUR RESUME YOU'VE DONE SOME STATISTICAL --

HAVE YOU DESIGNED THE
WHY DON'T YOU

DID YOU HAVE ANY HAND OR WERE YOU CONSULTED SPECIFICALLY ON

THE COMPOSITION OF A SUBJECT POPULATION IN A MEDICAL STUDY

AND, NO, I HAD NO INPUT ON THAT.
Q.

INCLUDING EVEN ITS SIZE OR --

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 569

925-212-5224

1862
WOODWORTH-CROSS/MATTHIAS
CERTAINLY I WILL DO WHAT IS CALLED "A POWER ANALYSIS," WHICH

1

A.

2

IS TO CALCULATE A SAMPLE SIZE NEEDED TO ACHIEVE A LEVEL OF

3

PRECISION.

4

CASE, THE FDA.

5

Q.

6

THE POPULATION FOR TEST PURPOSES?

7

A.

NO.

8

Q.

I'D LIKE TO TAKE IT -- I UNDERSTAND THAT ONE OF THE THINGS

9

THAT YOU DID IN CONNECTION WITH THIS STUDY WAS YOU TOOK THE

IT WOULD BE PERSUASIVE TO THE FACT-FINDERS, IN THIS

BUT, OTHERWISE, YOU HAD NO ROLE IN DEFINING WHO SHOULD BE IN

10

INFORMATION THAT'S REFLECTED IN PROFESSOR BALDUS' TABLE FOUR,

11

PART TWO, WHICH IS THE LIST OF STATES, IF THAT'S FAMILIAR TO

12

YOU, AND YOU MADE SOME VERY SUBSTANTIAL ADJUSTMENTS TO IT IN

13

LIGHT OF THE DATA THAT WAS DERIVED FROM THE SUPPLEMENTAL

14

HOMICIDE REPORTS; IS THAT CORRECT?

15

A.

I MADE SOME ADJUSTMENTS.

16

Q.

WELL, WHAT WAS THE DIFFERENCE BETWEEN THE RESULTS, THE DEATH

17

ELIGIBILITY RATE CALCULATED BY YOU AND PROFESSOR BALDUS, OR JUST

18

BY YOU, FOR CALIFORNIA, AND THE DEATH ELIGIBILITY RATE THAT WAS

19

DERIVED FROM THE UNPUBLISHED DATA GENEROUSLY PROVIDED TO YOU BY

20

PROFESSORS FAGAN, ET AL?

21

A.

TWELVE PERCENTAGE POINTS, ROUGHLY.

22

Q.

TWELVE?

23

A.

UM-HUM.

24

Q.

WHY DON'T YOU LOOK AT TABLE ONE IN PROFESSOR BALDUS' CHART?

25

A.

YOU'LL HAVE TO FIND IT FOR ME.

"SUBSTANTIAL" IS YOUR TERM.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 570

925-212-5224

1

Q.

1863
WOODWORTH-CROSS/MATTHIAS
WELL, LET ME JUST DO IT THIS WAY, IN THE INTEREST OF TIME.

2

IF TABLE ONE REFLECTS A DEATH ELIGIBILITY RATE OF

3

SOMEWHERE IN THE NEIGHBORHOOD OF 55 PERCENT, AND THE TABLE ONE

4

OF YOURS, WHICH REFLECTS THE SHR RESULTS --

5

A.

6

50.3.

7

Q.

8

PREADJUSTED --

9

A.

OH.

10

Q.

-- CALIFORNIA STUDY, AND THE DATA, THE CALCULATION TETHERED

11

TO CALIFORNIA IN THE FAGAN MATERIAL.

12

A.

13

CONTINUE.

14

Q.

WHAT'S THE DIFFERENCE, IS MY QUESTION.

15

A.

BETWEEN?

16

Q.

BETWEEN THE DEATH ELIGIBILITY RATE THAT YOU CALCULATED AS A

17

RESULT OF THIS STUDY, AND THE DEATH ELIGIBILITY RATE --

18

A.

YOU MEAN, THE OVERALL DEATH ELIGIBILITY RATE.

19

Q.

I MEAN --

20

A.

FOR ALL CRIMES OF CONVICTION.

21

Q.

NO. THE FAGAN MATERIAL.

22

A.

OH, WE DIDN'T CALCULATE THE FAGAN MATERIAL.

23

Q.

WELL, YOU ENDED UP ADJUSTING IT. AND MY QUESTION IS --

24

A.

RIGHT.

25

Q.

OKAY.

I THOUGHT YOU WERE ASKING ME THE DIFFERENCE BETWEEN 37.8 AND

NO.

I'M ASKING YOU THE DIFFERENCE BETWEEN YOUR

WELL, PROCEED. I DON'T UNDERSTAND YOUR QUESTION YET.

YOU ENDED UP -- HOW MUCH DID YOU HAVE TO ADJUST IT IN

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 571

925-212-5224

1864
1

WOODWORTH-CROSS/MATTHIAS
ORDER TO MAKE IT CLOSE TO YOUR RESULTS? THAT'S MY QUESTION.

2

A.

I DID NOT ADJUST IT TO MAKE IT CLOSE.

3

Q.

WELL, AGAIN --

4

A.

I ADJUSTED IT USING STATISTICAL PRINCIPLES.

5

Q.

AND IT BECAME CLOSER.

6

A.

AND IT BECAME CLOSER.

7

Q.

AND MY QUESTION IS:

8

A.

WHAT?

9

Q.

THE MEASURE BY WHICH IT WAS ADJUSTED UPWARDLY TO BE CLOSER?

10

A.

IT WAS, AS PROFESSOR BALDUS HAS EXPLAINED, AND AS I

11

EXPLAINED IN DIRECT, IT WAS ADJUSTED UPWARD BY ADDING IN AN

12

ESTIMATE OF WHAT PROPORTION OF THE SHR SAMPLE WOULD HAVE THE

13

LYING-IN-WAIT CIRCUMSTANCE. THAT WAS THE PRINCIPAL ADJUSTMENT.

14

Q.

15

ALL DO THE MATH.

16

A.

WELL, YOU CAN SEE IT.

17

Q.

ALL WE HAVE TO DO IS COMPARE THE RESULTS THAT APPEAR IN

18

TABLE ONE AND THE RESULTS THAT APPEAR IN TABLE FOUR, FART TWO.

19

AND WE CAN DO THE MATH.

WHAT IS THAT MEASURE?

I WAS REALLY ASKING YOU FOR A NUMBER, BUT WE CAN ACTUALLY

20

LET ME MOVE ON, PLEASE.

21

IF YOU COULD JUST KEEP IN MIND ALL OF YOUR TABLES.

22

YOU HAVE TABLE ONE, TABLE TWO, TABLE THREE AND TABLE FOUR.

23

THINK THIS IS NOT GOING TO BE CONTROVERSIAL, BUT I JUST WANT TO

24

MAKE SURE I UNDERSTAND.

25

I

THE PREADJUSTED CALCULATIONS ARE THOSE THAT ARE SHOWN
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 572

925-212-5224

1865
WOODWORTH-CROSS/MATTHIAS
1

IN TABLE ONE.

2

THE UNDERLYING DATA FOR WHICH THOSE CALCULATIONS ARE

3

DERIVED IS SHOWN IN TABLES TWO AND THREE.

4

AND ADJUSTMENTS ARE SHOWN AND EXPLAINED IN TABLE FOUR.

5

IS THAT ALL CORRECT?

6

MR. LAURENCE:

7

THE WITNESS:

AND YOUR REANALYSIS

OBJECTION.

I'M NOT SURE WHICH.

YOU HAVE ME AT A LOSS.

8

WHAT YOU'RE TALKING ABOUT.

9

I DON'T KNOW

BY MR. MATTHIAS

10

Q.

I'M REFERRING TO YOUR DECLARATION.

11

A.

MY DECLARATION HAS AN APPENDIX B, PART ONE AND TWO.

12

HAS THE SOME APPENDIX TABLES, WHICH ARE THE SOURCES OF MY DATA.

13

Q.

AND IT

RIGHT YOU ARE. SO LET ME TRY AGAIN.

14

TABLE ONE IS THE PREADJUSTED DATA. TABLES TWO AND

15

TABLES THREE ARE THE RAW DATA THAT UNDERLIE THOSE CALCULATIONS.

16

A.

CAN SOMEBODY PROVIDE ME WITH THOSE TABLES, PLEASE?

17

Q.

YOU DON'T HAVE YOUR DECLARATION IN FRONT OF YOU?

18

A.

I HAVE IT IN FRONT OF ME. IT DOESN'T HAVE THE TABLES

19

ATTACHED.

20

Q.

21

OUT THE TABLES.

OH, THAT'S THE EARLIER VERSION THAT YOU PRODUCED THAT LEFT

22

MR. LAURENCE:

PAGE FIVE OF 218.

23

THE WITNESS:

24

I'M ORIENTED AS TO TIME AND SPACE NOW.

THANK YOU. ALL RIGHT.

25
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 573

925-212-5224

1866
WOODWORTH-CROSS/MATTHIAS
1

BY MR. MATTHIAS

2

Q.

3

LOOK AT TABLE ONE, TABLE TWO, TABLE THREE AND YOUR APPENDIX E,

4

WHICH I ERRONEOUSLY REFERRED TO AS TABLE FOUR.

5

A.

YOU'RE NOT INTERESTED IN TABLE THREE?

6

Q.

NO, I AM INTERESTED IN TABLE THREE.

7

THREE.

8

A.

AND THE APPENDIX.

9

Q.

AND THE APPENDIX, WHICH IS THE VERY LAST PAGE BEHIND THE CD.

10

A.

YES.

11

Q.

SO THE PREADJUSTED CALCULATIONS ARE REFLECTED IN TABLE ONE.

12

THE DATA UNDERLYING THOSE CALCULATIONS CAN BE FOUND IN TWO AND

13

THREE. AND YOUR REANALYSIS AND ADJUSTMENTS ARE SHOWN AND

14

EXPLAINED IN THE APPENDIX.

15

A.

16

AND THREE.

17

Q.

IN THEIR PREADJUSTED FORM?

18

A.

YES.

19

Q.

OKAY. AND THEN, E.

20

A.

BUT THAT'S NOT ALL OF THE DATA THAT WENT INTO THE

21

ADJUSTMENT. THE REST OF THE DATA IS IN PART TWO.

22

FROM THE CALIFORNIA STUDY THAT PROFESSOR BALDUS AND I ARE

23

TESTIFYING ON.

24

Q.

25

THE INFORMATION IN TABLE ONE, CAN YOU?

OKAY.

WHY DON'T YOU TAKE TEN SECONDS, OR WHATEVER YOU NEED.

OKAY.

I'M FINE.

LOOK AT ONE, TWO,

PROCEED.

THE SHR DATA THAT WENT INTO THE STUDY IS IN TABLES ONE, TWO

AND THAT CAME

UNDERSTOOD. YOU CANNOT PERSONALLY ATTEST TO THE ACCURACY OF

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 574

925-212-5224

1867
1

A.

WOODWORTH-CROSS/MATTHIAS
FAGAN IS A RESPECTED INVESTIGATOR.

2

Q.

I APPRECIATE YOUR VIEWS ON THAT.

3

YOU CAN PERSONALLY ATTEST TO THE VALIDITY AND ACCURACY OF THOSE

4

FIGURES.

5

A.

NO.

6

Q.

AND WHY NOT?

7

A.

I DIDN'T DO THE TABULATIONS.

8

ANOTHER SCHOLAR, WHICH IS NOT UNUSUAL.

9

Q.

LET ME ASK YOU:

THE QUESTION WAS WHETHER

I RELIED ON THE WORK OF

LOOKING AT TABLE ONE, WHO DECIDED NOT TO

10

INCLUDE IN THIS DISPLAY OF JURISDICTIONS INFORMATION PERTINENT

11

TO THE FEDERAL DEATH PENALTY STATUTE?

12

A.

I HAVEN'T ANY IDEA.

13

Q.

BUT IT WASN'T YOU?

14

A.

NO.

15

Q.

YOU ARE AWARE OF AVAILABLE DATA OF SIMILAR KIND TO THE DATA

16

THAT'S REFLECTED HERE FOR EACH OF THESE STATES THAT PERTAINS TO

17

THE FEDERAL STATUTE, CORRECT?

18

YOU'RE AWARE OF THAT FROM THE LITERATURE, IS WHAT I

19

MEAN.

20

A.

21

HAVEN'T WORKED WITH IT.

22

Q.

23

SPECTRUM OF THE HIGH OF ALABAMA TO THE LOW OF CALIFORNIA?

24

A.

STATE YOUR QUESTION AGAIN.

25

Q.

DO YOU HAVE ANY IDEA WHERE IT WOULD PLUG IN --

YES, I'M AWARE THAT SOMETHING OF THAT SORT IS AVAILABLE. I

SO YOU HAVE NO FEEL FOR WHERE IT WOULD PLUG IN ON THIS

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 575

925-212-5224

1868
WOODWORTH-CROSS/MATTHIAS
1

A.

WELL --

2

Q.

-- IF YOU HAD THE SAME DATA.

3

A.

-- CLARIFY IT FOR ME AGAIN.

4

Q.

I'M SORRY.

5

NOT UNDERSTANDING?

6

A.

YES, "WHERE IT WOULD PLUG IN."

7

Q.

THE FEDERAL DATA, THE DATA PERTINENT TO THE FEDERAL STATUTE.

8

COMPARABLE DATA TO THAT DISPLAYED IN TABLE ONE.

9

A.

WHAT FEDERAL STATUTE?

10

Q.

THE FEDERAL DEATH PENALTY STATUTE.

11

A.

THIS IS ABOUT A STATE JURISDICTION. IT'S NOT RELEVANT. THE

12

FEDERAL DATA IS NOT RELEVANT.

13

Q.

YOU MADE THAT JUDGMENT?

14

A.

NO, OF COURSE NOT. I DO WHAT I'M ASKED TO DO. I'M A TEAM

15

MEMBER.

16

CASES, BUT THIS IS NOT ONE OF THEM.

17

Q.

18

JURISDICTIONS OTHER THAN CALIFORNIA?

19

A.

NO.

20

Q.

OKAY. NOW, IN ITS PREADJUSTED FORM AS IT'S APPEARS IN TABLE

21

ONE, I HOPE YOU'LL ACKNOWLEDGE THAT IF THERE ARE DEFICIENCIES IN

22

THIS DATA, THEY WOULD CARRY FORWARD TO ANY ADJUSTMENTS YOU MADE.

23

A.

THAT'S UNARGUABLE.

24

Q.

OKAY.

25

A.

ALSO VERY GENERAL.

IS THERE A PARTICULAR WORD I'M USING THAT YOU'RE

MY JUDGMENT AND EXPERTISE ARE CALLED UPON IN MANY

WELL, DID YOU MAKE THE JUDGMENT TO INCLUDE OTHER

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 576

925-212-5224

1869
WOODWORTH-CROSS/MATTHIAS
NOW, PROFESSOR BALDUS TESTIFIED, OR HE SAID ACTUALLY IN HIS

1

Q.

2

DECLARATION, THAT THE VALIDITY OF THE STUDIES THAT HE CONDUCTED

3

WITH RESPECT TO MARYLAND, NEBRASKA AND NEW JERSEY BECAME

4

ENHANCED WHEN HE SAW THAT THE RESULTS OF THE SHR STUDY BY FAGAN,

5

WHEN HE SAW THOSE BECAUSE THOSE RESULTS WERE WHAT YOU CALLED

6

"COMPARABLE" TO THOSE OBTAINED UNDER HIS STUDY.

7

MY QUESTION WAS YOUR CONFIDENCE IN THE VALIDITY OF

8

EITHER FAGAN'S STUDY OR THE CALIFORNIA STUDY UNDERMINED WHEN YOU

9

SAW THAT THE DEATH-ELIGIBILITY RATES CALCULATED BY FAGAN WERE 17

10

TO 30 POINTS LOWER?

11

A.

12

REASON THAT IT WAS LOWER.

13

Q.

14

FOR AN ADJUSTMENT OR AN EXPLANATION THAT COULD BE DEALT WITH BY

15

ADJUSTMENT?

16

A.

17

EXPLANATIONS OF ANOMALIES.

18

Q.

19

HOMICIDE REPORTS, CORRECT?

20

LITERATURE ON THAT. I ASKED -- I ASKED THE SAME QUESTION OF

21

PROFESSOR BALDUS, AND YOU WERE, NO DOUBT, PRESENT.

WE WERE PUZZLED BY IT AT FIRST, AND THEN WE RECOGNIZED THE

SO AS SOON AS YOU SAW THAT DIFFERENCE YOU SET ABOUT LOOKING

I'M A SCIENTIST.

THAT'S THE WAY WE THINK.

WE LOOK FOR

YOU'RE AWARE OF THE LIMITATIONS OF USING THIS SUPPLEMENTAL

22

THAT YOU'RE FAMILIAR WITH THE

HE ACKNOWLEDGED IT.

23

THE SAME.

24

A.

25

I'M ASKING YOU IF YOU WOULD DO

DATA.

NO, I HAVE NO DIRECT KNOWLEDGE OF THE LIMITATIONS OF THOSE

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 577

925-212-5224

1870
WOODWORTH-CROSS/MATTHIAS
YOU ARE UNAWARE OF LITERATURE IN YOUR FIELD WHICH HAS

1

Q.

2

IDENTIFIED THE DEFICIENCIES OF RELYING --

3

A.

4

VALID INFERENCES FROM DATA.

5

Q.

6

IN CLASSIFYING THE CIRCUMSTANCES SURROUNDING HOMICIDES?

7

A.

8

KNOWLEDGE OF IT.

9

Q.

MY FIELD IS STATISTICAL METHODOLOGY.

WE ARE ABOUT MAKING

SO YOU WOULD DISAGREE THAT THE SHR DATA ARE MARKED BY ERRORS

NO, YOU MISUNDERSTAND ME.

I'M SAYING I HAVE NO DIRECT

WELL, ARE YOU AWARE OF PEOPLE IN YOUR FIELD WHO HAVE MADE

10

THAT OBSERVATION?

11

A.

NO.

12

Q.

ARE YOU AWARE OF PEOPLE IN YOUR FIELD HAVING MADE THAT

13

OBSERVATION?

14

A.

NO.

15

Q.

OKAY. ALL RIGHT. EVEN SO, LET'S LOOK AT THE CALIFORNIA SHR'S

16

FOR THE PERIOD 1978 TO 2003.

17

NOW, YOUR STUDY, YOUR CALIFORNIA STUDY EXAMINED

18

ALMOST AN IDENTICAL PERIOD. IT WAS 1978 TO 2002; IS THAT

19

CORRECT?

20

A.

YES.

21

Q.

OKAY. AND FAGAN'S UNIVERSE WAS 76,000 CASES AND CHANGE.

22

YOUR UNIVERSE WAS 27,000 CASES AND CHANGE.

23

COVERED ESSENTIALLY THE SAME PERIOD LESS ONE YEAR, 25 VERSUS 26

24

YEARS.

25

AND

AND YET, THEY

AND, OF COURSE, THE EXPLANATION FOR THAT DIFFERENCE
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 578

925-212-5224

1

1871
WOODWORTH-CROSS/MATTHIAS
IS THAT THE SHR INCLUDED UNSOLVED CRIMES, UNCHARGED CRIMES AND

2

ACQUITTALS.

3

A.

YES, I KNOW WHAT IT'S BASED ON.

4

Q.

AND DOES THAT EXPLAIN THE DIFFERENCE IN THE SIZE OF THE

5

UNIVERSE?

6

A.

THAT IS THE EXPLANATION THAT I HAVE HEARD, YES.

7

Q.

NOW, ACQUITTAL, AN ACQUITTAL WOULD BE INCLUDED IN THE SHR'S.

8

AN ACQUITTAL WAS A CFF, UNDER YOUR STUDY, CORRECT?

9

A.

WHAT'S "CFF" STAND FOR?

10

Q.

DO YOU KNOW?

11

A.

WHAT IS "CFF"?

12

Q.

PARDON ME.

13

A.

CCF.

14

Q.

PARDON ME.

15

CONTROLLING FINDER OF FACT.

16

A.

OH, OKAY.

17

Q.

IS THAT CORRECT?

18

YOUR STUDY, ACQUITTALS?

19

A.

20

THOSE POINTS WITH PROFESSOR BALDUS OR ANYONE ELSE.

21

Q.

22

ORDER TO MAKE THAT ADJUSTMENT YOU RELIED UPON CALCULATIONS

23

DERIVED FROM YOUR CALIFORNIA STUDY, CORRECT?

24

A.

CORRECT.

25

Q.

AND THAT MADE THE RESULTS MORE SIMILAR?

CCF.

CCF.

CONTROLLING FINDING OF FACT, CFF.

IT WAS A CONTROLLING FINDER OF FACT UNDER

I HAVE NO DIRECT KNOWLEDGE OF THAT.

I'VE NEVER DISCUSSED

NOW, THE ADJUSTMENT THAT YOU MADE TO FAGAN'S NUMBERS, IN

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 579

925-212-5224

1872
WOODWORTH-CROSS/MATTHIAS
SOMEWHAT TO MY SURPRISE, YES. BUT IT DID MAKE THEM MORE

1

A.

2

SIMILAR.

3

Q.

4

PROBABLY NEED TO LOOK AT PAGE TWO, FOOTNOTE ONE OF YOUR

5

DECLARATION.

6

A.

OKAY.

7

Q.

AND YOU DESCRIBED EARLIER WHY IT WAS THAT YOU MADE AN

8

ADJUSTMENT FOR THE GANG ENHANCEMENT.

9

THAT FOR SOME PERIOD OF THE PERIOD OF TIME COVERED BY THE STUDY

NOW, LET ME ASK YOU THIS:

IN ORDER TO ANSWER THIS YOU

AND THAT RESTS ON THE FACT

10

THE GANG ENHANCEMENT WAS NOT IN EFFECT.

11

ADJUST FOR THAT; IS THAT CORRECT?

12

A.

I NEEDED TO REMOVE THAT OVERCOUNT, YES.

13

Q.

OKAY.

14

YOU DIDN'T MAKE AN ADJUSTMENT FOR THE FACT THAT -- WELL, LET'S

15

LOOK AT THE LIST.

16

AND SO YOU NEEDED TO

AND WHILE YOU WERE AT IT, IS THERE ANY REASON THAT

THE FAGAN MATERIAL, AS YOU DESCRIBE IT IN FOOTNOTE

17

ONE, THE AUTHOR'S CLASSIFIED -- I'M READING ON ABOUT LINE 23, IF

18

YOU WANT TO FOLLOW ALONG IN THE FOOTNOTE, MIDDLE OF THE

19

FOOTNOTE:

20

"TO GENERATE A DEATH ELIGIBILITY ESTIMATE FOR

21

EACH STATE, THE AUTHOR HAS CLASSIFIED A MURDER OR

22

NONNEGLIGENT HOMICIDE AS DEATH ELIGIBLE IF IT

23

INCLUDED ANY OF THE FOLLOWING ELEMENTS THAT ARE PART

24

OF THE RECURRENT LANGUAGE OF CAPITAL ELIGIBLE

25

HOMICIDES ACROSS THE STATES."
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 580

925-212-5224

1873
1

WOODWORTH-CROSS/MATTHIAS
AND THEN, THERE'S A LIST A THROUGH G.

2

AND YOU MADE AN ADJUSTMENT FOR A D AND FOR E.

3

D BEING GANGLAND KILLING INVOLVING STREET GANGS, AND

4

E BEING INSTITUTION KILLINGS WHERE THE OFFENDER WAS CONFINED; IS

5

THAT CORRECT?

6

OR YOU DIDN'T MAKE THAT ADJUSTMENT.

PARDON ME.

YOU

7

DID IT FOR LYING IN WAIT?

8

A.

YEAH, F.

9

Q.

RIGHT. WHY DIDN'T YOU DO IT FOR B, KILLING OF CHILDREN BELOW

10

AGE SIX?

11

THAT'S NOT A SPECIAL IN CALIFORNIA.
I MEAN, THE ANSWER MAY BE IT WASN'T YOUR DECISION,

12

AND THAT'S FINE.

BUT MY QUESTION IS:

WHY DIDN'T YOU?

13

A.

GOOD QUESTION.

14

Q.

ALL RIGHT.

15

A.

IT NEVER CAME UP IN ANY CONVERSATION I CAN RECALL.

16

Q.

OKAY. WELL, BY INCLUDING IT YOU ACKNOWLEDGE THAT THAT WOULD

17

RESULT IN INFLATION OF THE SHR DATA.

18

A.

LET'S SEE. PERHAPS. YES, IT WOULD.

19

Q.

LIKEWISE WITH E?

20

A.

E IS WHAT?

21

Q.

INSTITUTION KILLINGS WHERE THE OFFENDER WAS CONFINED IN A

22

CORRECTIONAL OR OTHER GOVERNMENTAL INSTITUTION.

23

A.

LET'S LOOK AT FAGAN'S NUMBERS ON THAT.

24

Q.

WELL, EVEN IF IT'S ONLY ONE CASE, IT RESULTS -- IT WOULD

25

INFLATE THE NUMBERS, WOULDN'T IT?
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 581

925-212-5224

1874
1

A.

WOODWORTH-CROSS/MATTHIAS
HALF OF 1 PERCENT IN CALIFORNIA.

2

Q.

OKAY.

3

A.

ACCORDING TO FAGAN, SO THAT'S GOING TO BE NEGLIGIBLE.

4

Q.

HOW ABOUT G:

5

NOT A SPECIAL IN CALIFORNIA.

6

KILLINGS IN THE COURSE OF DRUG BUSINESS ALSO

IT WOULD RESULT IN AN INFLATED FIGURE, WOULD IT NOT?

7

A.

IF I MAY, I'M LOOKING AT TABLE TWO AND THREE --

8

Q.

YOU KNOW, IF MR. LAURENCE WANTS TO GET THE PRECISE NUMBER,

9

HE CAN DO IT ON HIS TIME.

I'M JUST ASKING WHETHER IT WOULD

10

RESULT IN AN INFLATED NUMBER.

AND I THINK THE ANSWER HAS TO BE

11

YES.

12

A.

13

DIDN'T EVEN CHOOSE TO TABULATE IT AS FAR AS I CAN SEE, UNLESS

14

YOU CAN CORRECT ME ON THAT.

15

Q.

16

YOU DID NOT MAKE ANY ADJUSTMENTS TO ANY OTHER STATE, TO ANY

17

OTHER STATE'S NUMBERS IN LIGHT OF WHAT YOU MAY HAVE PERCEIVED TO

18

BE A LESS THAN PERFECT FIT BETWEEN THE SHR REPORTING CRITERIA

19

AND THAT PARTICULAR STATE'S DEATH PENALTY STATUTE; IS THAT

20

CORRECT?

21

A.

22

IT -- IT WASN'T MY DECISION NOT TO DO IT. THE REASON FOR THAT AS

23

I UNDERSTAND IT IS THAT CALIFORNIA IS THE ONLY STATE THAT HAS

24

SUCH A BROAD -- AND, AGAIN, THIS IS HEARSAY, IF YOU LIKE --

25

LYING-IN-WAIT STATUTE.

AND MY ANSWER IS THAT IT'S PROBABLY DE MINIMUS BECAUSE FAGAN

IF YOU WOULD, LOOK AT YOUR TABLE ONE, AGAIN.

I TAKE IT THAT

THAT IS CORRECT. AND THE REASON FOR THAT IS, AS I UNDERSTAND

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 582

925-212-5224

1875
WOODWORTH-CROSS/MATTHIAS
AND THAT WAS THE PRINCIPAL REASON THAT THE GENERIC

1
2

SHR NUMBER WAS LOW.

3

Q.

4

DISCONNECT BETWEEN THE SCOPE OF THEIR DEATH PENALTY STATUTE AND

5

THE SHR --

6

A.

I WAS --

7

Q.

-- REPORTING CRITERIA, CORRECT?

8

A.

-- NEVER PRESENT AT A MEETING AT WHICH THAT WAS DISCUSSED.

9

Q.

SO IF WE WANTED TO TAKE THE ADJUSTED NUMBER AND COMPARE IT

YOU DON'T KNOW WHETHER ANY OTHER STATES HAVE A SUBSTANTIAL

10

MEANINGFULLY TO THE OTHER STATES, WE WOULD HAVE TO HAVE

11

CONFIDENCE THAT THE SAME -- THAT THE OTHER STATES UNDERWENT THE

12

SAME RIGOROUS REANALYSIS IN LIGHT OF ANY DISCONNECT BETWEEN

13

THEIR STATUTORY TERMS AND THE SHR REPORTS, CORRECT?

14

A.

15

OF -- PRINCIPALLY LOOKING AT THE EFFECT OF THE LYING-IN-WAIT

16

STATUTE, WHICH, AS I UNDERSTAND IT, IS UNIQUE, OR NEARLY UNIQUE.

17

AGAIN, THIS IS HEARSAY.

WE WOULD HAVE -- WE'RE SPECIFICALLY LOOKING AT THE EFFECT

18

AND, THEREFORE, THE ONLY CONCERN I WOULD HAVE HAD IS

19

WHETHER THERE'S ANY OTHER STATE WITH THAT SPECIAL CIRCUMSTANCE.

20

Q.

21

WAS TO ASSESS THE SCOPE OF CALIFORNIA'S LYING-IN-WAIT SPECIAL

22

CIRCUMSTANCE AND NO OTHER PURPOSE?

23

A.

NO, I DIDN'T SAY THAT.

24

Q.

OKAY. YOU ARE FAMILIAR WITH THE TERM "OBSERVER EXPECTANCY

25

BIAS"?

IT'S YOUR UNDERSTANDING THAT THE ONLY PURPOSE OF THIS STUDY

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 583

925-212-5224

1

A.

1876
WOODWORTH-CROSS/MATTHIAS
NOT IN THOSE EXACT -- NOT IN THAT EXACT FORM OF WORDS, NO.

2

Q.

HOW ABOUT "OBSERVER BIAS"?

3

A.

I UNDERSTAND THE CONCEPT.

4

WORDS, NO.

5

Q.

DO YOU KNOW IT BY ANOTHER LABEL?

6

A.

WELL, YES, OF COURSE.

7

CLINICAL MEDICAL TRIALS.

8

AND UNCONSCIOUS BIASES IN THE OBSERVER CAUSED BY KNOWLEDGE OF

9

WHAT EXPERIMENTAL GROUP THE SUBJECT WAS IN.

10

I HAVEN'T HEARD IT IN THOSE

PARTICULARLY SINCE I WORK WITH
WE'RE VERY CONCERNED ABOUT CONSCIOUS

SO I'M WELL-AWARE

OF OBSERVER EXPECTATIONS THAT MIGHT BIAS RESULTS.

11

HOWEVER, IN MEDICAL STUDIES THE EXPECTATION

IS

12

CLEARCUT AND PLAUSIBLE.

13

PHYSICIAN WHO IS IN CHARGE OF ASSIGNING THE TREATMENT WOULD

14

KNOW -- WOULD ACTUALLY PROBABLY BE ABLE TO STEER HEALTHIER

15

SUBJECTS INTO THE TREATMENT THAT WAS EXPECTED TO BE BETTER FOR

16

THEM.

17

IN FACT, IT'S DOCUMENTABLE IN THAT THE

IT MIGHT HAVE BEEN AN ACT OF HUMANITY.

THERE'S SOME

18

DOCUMENTATION OF THAT IN SOME STUDIES.

19

Q.

20

ANOTHER LABEL.

21

A.

22

RESEARCH.

23

Q.

WHAT'S THE LABEL YOU ALL USE?

24

A.

I DON'T HAVE ANY SPECIFIC LABEL FOR IT.

25

Q.

WELL, WHAT YOU'RE DESCRIBING FOR ME, WOULD YOU CALL THAT

MY QUESTION WAS WHETHER YOU KNOW OF THAT PHENOMENON BY

WE CERTAINLY TALK ABOUT THAT KIND OF CONCEPT IN CLINICAL

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 584

925-212-5224

1

1877
WOODWORTH-CROSS/MATTHIAS
SYSTEMIC OR SYSTEMATIC ERROR PRODUCED BY OBSERVATIONAL DATA BY

2

AN OBSERVER'S EXPECTATIONS OR WISHES?

3
4

I'M SORRY.

I GARBLED THAT.

I AM GOING TO READ THAT

AGAIN:

5

"SYSTEMATIC ERROR PRODUCED IN OBSERVATIONAL DATA

6

BY AN OBSERVER'S EXPECTATIONS OR WISHES."

7

A.

THAT SEEMS LIKE A FAIR CHARACTERIZATION OF THE CONCEPT THAT

8

WE'RE TALKING ABOUT.

9

Q.

AND WOULD YOU AGREE THAT THIS IS A SPECIES OF ERROR THAT IS

10

STRONGLY ASSOCIATED WITH OBSERVATIONS MADE ON VARIABLES THAT

11

REQUIRE SUBJECTIVE ASSESSMENT?

12

A.

13

THEN IT'S A READING ON AN INSTRUMENT, YEAH. SO YEAH.

14

Q.

15

GOING ON IN THE STUDY YOU PARTICIPATED IN WAS A SUBJECTIVE

16

ENTERPRISE, CORRECT?

17

A.

PROFESSOR BALDUS HAS STATED IN MY HEARING THAT --

18

Q.

MY QUESTION REALLY DIDN'T ASK YOU YOUR POWER OF RECALL ON

19

WHAT PROFESSOR BALDUS SAID.

20

A.

21

KNOW WHAT THEY LOOK LIKE. I HAVE NO FEELING FOR HOW MUCH

22

JUDGMENT IS REQUIRED BY THE OBSERVER.

23

THAT'S ALMOST A TAUTOLOGY, BECAUSE IF IT'S NOT SUBJECTIVE,

YOU'D AGREE THAT THE DEATH ELIGIBILITY ASSESSMENT THAT WAS

I HAVE NEVER CRACKED ONE OF THESE PROBATION REPORTS. I DON'T

"SUBJECTIVE" SIMPLY MEANS THAT THE JUDGMENT DEPENDS

24

UPON THE BACKGROUND AND EXPERIENCE OF THE OBSERVER. IT DOES NOT

25

NECESSARILY MEAN WHIMSICAL OR BIAS.
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 585

925-212-5224

1878
WOODWORTH-CROSS/MATTHIAS
YOU EARLIER IDENTIFIED THE TORTURE AND LYING-IN-WAIT SPECIAL

1

Q.

2

CIRCUMSTANCES AS AMONG THE MORE DIFFICULT. AND THAT'S WHY YOU

3

WERE DIRECTED TO REEXAMINE THEM.

4

WAS THE DIFFICULTY ASSOCIATED WITH THE SUBJECTIVE

5

NATURE IN WHICH THAT HAD TO BE APPLIED?

I THOUGHT THAT WAS THE

6

EXACT RATIONALE GAVE FOR WHY YOU LOOKED AT THOSE SPECIAL

7

CIRCUMSTANCES.

8

A.

9

COMPLICATED IN ITS APPLICATION, AS I UNDERSTAND IT.

NO, I THINK THAT IT'S REQUIRED -- THAT THE LYING-IN-WAIT IS
AND IT

10

REQUIRES FAIRLY MATURE LEGAL JUDGMENT, AS REPRESENTED BY

11

PROFESSOR BALDUS.

12
13

THAT DOES NOT MAKE IT SUBJECTIVE. IT SIMPLY MAKES IT
REQUIRE A HIGHER LEVEL OF EXPERTISE THAN THE OTHERS.

14

HE WAS MORE CONCERNED ABOUT THOSE TWO, AS I

15

UNDERSTAND IT, FOR THAT REASON.

NOT BECAUSE THEY WERE MORE

16

SUBJECT TO THE WHIMS AND PASSIONS OF THE OBSERVER, BUT BECAUSE

17

THEY REQUIRED MORE KNOWLEDGE AND EXPERTISE ON THE PART OF THE

18

OBSERVER, IF YOU WANT TO ALL A JUDGE AN EXPERT.

19

NOT --

20

Q.

21

WAS DEFINED FOR PURPOSES OF THIS STUDY?

22

A.

I'VE ALREADY SAID "NO" TO THAT.

23

Q.

YOU ARE NOT AWARE OF THE DEFINITION, THE OPERATING

24

DEFINITION FOR THE STUDY?

25

A.

A JUDGE IS

ARE YOU AWARE OF THE CRITERIA BY WHICH "DEATH ELIGIBILITY"

I BELIEVE THAT QUESTION HAS BEEN ASKED AND ANSWERED.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 586

I

925-212-5224

1879
WOODWORTH-CROSS/MATTHIAS
1

BELIEVE I SAID --

2

Q.

3

THAT MIGHT BE AN APPROPRIATE OBJECTION FOR MR. LAURENCE TO

4

RAISE.

5

A.

6

COMMENTARY HERE.

WELL, THAT MIGHT BE AN APPROPRIATE -- EXCUSE ME, PROFESSOR.

IT'S NOT A REASON FOR YOU NOT TO ANSWER MY QUESTION.

WELL, I'M NOT DENYING IT.

7

I'M JUST GIVING SOME META

NOW, LET ME THINK ABOUT IT.

ASK ME THE QUESTION AGAIN P.

8

Q.

ARE YOU AWARE OF THE DEFINITION OF "DEATH ELIGIBILITY" THAT

9

WAS OPERATIVE FOR PURPOSES OF THIS STUDY?

10

A.

DEATH ELIGIBILITY WAS DEFINED BY THE STATUTE, AND IT WAS

11

DEFINED AS THE PRESENCE OF ONE OR MORE SPECIAL CIRCUMSTANCES

12

UNDER THE BODY OF LAW OF A SPECIFIC PERIOD, I.E., PRE-FURMAN, OR

13

CARLOS WINDOW OR 2008.

14

Q.

15

YOU PURPORTED TO CALCULATE A DEATH SENTENCING RATIO, CORRECT?

16

A.

WHAT ARE YOU REFERRING TO HERE?

17

Q.

I'M REFERRING TO YOUR DECLARATION.

18

FAMILIAR TO YOU, "DEATH ELIGIBILITY RATE"?

19

A.

OF COURSE I UNDERSTAND THAT.

20

Q.

OKAY.

21

A.

IT'S MY PHRASE.

22

Q.

"DEATH SENTENCING RATE," THESE MEAN THINGS.

23

SOMETHING TO YOU?

24

A.

WHERE DO YOU SEE THE WORD "DEATH SENTENCING RATE"?

25

Q.

IN YOUR DECLARATION.

NOW, IN ADDITION TO CALCULATING A DEATH ELIGIBILITY RATIO,

ARE THESE TERMS NOT

THIS MEANS

WE DON'T NEED TO FIND IT IN THERE.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 587

925-212-5224

1880
1

WOODWORTH-CROSS/MATTHIAS
LET'S JUST TALK ABOUT THE TERMS.

2
3

MR. LAURENCE:

I DON'T FIND "DEATH

SENTENCING RATE."

4
5

I OBJECT.

THE WITNESS:

I DON'T FIND IT IN MY DECLARATION.

YOU

HAVE TO ENLIGHTEN ME WHERE I SAID IT.

6

MR. LAURENCE:

7

BY MR. MATTHIAS

8

Q.

9

CAN WE HAVE A PAGE AND LINE NUMBER?

RATE"?

LET'S TRY THIS.

YES.

DO YOU KNOW THE TERM "DEATH SENTENCING

10

A.

IT'S THE NUMBER OF DEATHS OVER NUMBER AT RISK OF

11

DEATHS.

12

Q.

OKAY. WHAT IS THE "DEATH ELIGIBILITY RATE"?

13

A.

NUMBER OF DEATH ELIGIBLE OVER THE NUMBER OF CASES THAT WERE

14

AT RISK OF BEING DEATH ELIGIBLE.

15

Q.

16

FIRST NEED TO KNOW THE DEATH ELIGIBILITY RATE?

17

A.

NO.

18

Q.

HOW WOULD YOU CALCULATE IT WITHOUT KNOWING IT?

19

A.

THE DEATH SENTENCING RATE?

20

Q.

LET'S MAKE THIS REALLY SIMPLE.

21

PEOPLE.

22

A.

UM-HUM.

23

Q.

THREE ARE SENTENCED TO DEATH.

24

A.

RIGHT.

25

Q.

OKAY. NOW, YOU'D NEED TO KNOW BEFORE YOU CAN GET TO THREE

NOW, IN ORDER TO CALCULATE THE DEATH SENTENCING RATE, DO YOU

WE HAVE A POPULATION OF TEN

FIVE ARE DEATH ELIGIBLE BY SOME DEFINITION.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 588

925-212-5224

1881
1

WOODWORTH-CROSS/MATTHIAS
OVER FIVE, YOU HAVE GOT TO GET TO FIVE OVER TEN, RIGHT?

2

A.

YEAH, YOU GOT TO --

3

Q.

THAT'S WHAT I MEANT.

4

A.

THREE OVER FIVE, YOU HAVE TO GET TO FIVE.

5

Q.

THREE IS MEANINGLESS IN REFERENCE TO TEN.

6

MEANINGFUL UNLESS THE DEATH SENTENCING RATE BY REFERENCE --

7

SORRY.

8

ELIGIBILITY RATE FIRST."

9

A.

IT'S ONLY

THAT'S WHAT I MEANT BY "YOU NEED TO CALCULATE DEATH

WELL, AS TO "YOU HAVE TO," I CAN DIVIDE ANY TWO NUMBERS I

10

PLEASE. I WAS TOLD THAT WHAT THE -- WHAT MY PRINCIPAL

11

INVESTIGATOR, PROFESSOR BALDUS, FELT WAS THE CORRECT THING TO

12

CALCULATE WAS CAPITAL SENTENCES AMONG DEATH-ELIGIBLE.

13

NOW, THAT'S -- TO SAY THAT THAT'S THE RIGHT THING TO

14

DO IS A LEGAL STATEMENT, AND I HAVE ABSOLUTELY NO

15

QUALIFICATIONS --

16

Q.

THAT'S NOT --

17

A.

-- DENY THAT STATEMENT.

18

Q.

THAT'S NOT WHAT I ASKED YOU TO SAY. I'M ASKING A QUESTION

19

ABOUT MATH.

20

A.

UM-HUM.

21

Q.

OKAY?

22

THEM ARE DEATH ELIGIBLE.

23

TO KNOW THE DEATH SENTENCING RATE.

24
25

IN MY EXAMPLE, WE HAVE A POPULATION OF TEN. FIVE OF
THREE ARE SENTENCED TO DEATH. WE WANT

WE CAN'T DO THAT WITHOUT FIRST CALCULATING THE NUMBER
OF DEATH ELIGIBLE.
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 589

925-212-5224

1882
WOODWORTH-CROSS/MATTHIAS
IT'S ACTUALLY USUALLY DEFINED AS THE NUMBER OF DEATH

1

A.

2

SENTENCES AMONG PENALTY TRIALS, CASES TAKEN TO PENALTY TRIAL.

3

SO THIS IS A --

4

Q.

I'M SORRY.

YOU SAY IT USUALLY IS DEFINED THAT WAY?

5

A.

IN OTHER STUDIES WE'VE DONE IT'S DEATH SENTENCES DIVIDED BY

6

PENALTY TRIALS.

7

Q.

REALLY?

8

A.

BECAUSE WE WERE LOOKING AT A DIFFERENT QUESTION. WE'RE NOT

9

LOOKING AT HOW THE SYSTEM IS FUNCTIONING.

WHY DIDN'T YOU DO THAT HERE?

WE ARE LOOKING AT THE

10

BREADTH OF THE STATUTE.

11

Q.

YOU'RE ALSO LOOKING AT THE DEATH SENTENCING RATE.

12

A.

NO, I DON'T BELIEVE SO. WE'RE LOOKING AT THE DEATH

13

ELIGIBILITY RATE AND THE EXTENT TO WHICH IT IS BROADER THAN IN

14

OTHER JURISDICTIONS AND TO THE EXTENT THAT IT HAS NOT BEEN

15

NARROWED OR HAS OR HAS NOT BEEN NARROWED.

16

Q.

17

YOU DON'T UNDERSTAND PROFESSOR BALDUS TO HAVE GONE ON AND OPINED

18

ON THE DEATH SENTENCING RATE FOR CALIFORNIA?

19

A.

20

OF COURSE I KNOW WHAT HE DID IN HIS DECLARATION.

21

Q.

WELL, DO YOU KNOW --

22

A.

NONE OF THOSE DECISIONS WERE MADE BY ME.

23

Q.

BUT YOU KNOW THAT HE DID THAT?

24

A.

YES.

25

Q.

AND YOU KNOW THAT IN ORDER -- AND ASSISTED HIM IN

AND THAT'S WHERE THE ANALYSIS ENDS WITH DEATH ELIGIBILITY?

WHAT DOES IT MATTER WHETHER I KNOW HE DID THAT OR NOT?

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 590

YES,

925-212-5224

1883
1

WOODWORTH-CROSS/MATTHIAS
CALCULATING THAT NUMBER, DID YOU NOT?

2

A.

3

I BELIEVE THAT HIS DATA MANAGER DID THAT ONE.

4

Q.

5

QUESTIONING YOU AS THE SENIOR STATISTICIAN IN THIS PROJECT.

6

THERE A JUNIOR STATISTICIAN?

7

A.

OH, DAVE'S DATA MANAGER HAD SOME, A FEW STATISTICS COURSES.

8

Q.

YOU MEAN, MR. NEWELL?

9

A.

MR. NEWELL, YES.

10

Q.

WOULD YOU REGARD HIM AS THE JUNIOR STATISTICIAN ON THIS

11

PROJECT?

12

A.

BY NO MEANS.

13

Q.

WELL, I'M JUST ASKING THE QUESTION: WERE THERE ANY OTHER

14

STATISTICIANS INVOLVED IN THIS PROJECT?

15

A.

NO.

16

Q.

SUBORDINATE TO YOU?

17

A.

NO.

18

Q.

OKAY.

19

PROJECT?

20

A.

21

AT HERE.

22

HOW TO DO ANALYSES. I WROTE PROGRAMS THAT HE COULD RUN ON HIS

23

OWN.

24

Q.

25

NOT THAT PARTICULAR ONE. THAT WAS SUCH A SIMPLE THING TO DO

YOU DESCRIBED YOURSELF EARLIER WHEN MR. LAURENCE WAS
WAS

I WOULDN'T GIVE HIM THAT TITLE.

WERE YOU THE ONLY STATISTICIAN TO BE INVOLVED IN THIS

WELL, YES.

I GUESS I DON'T UNDERSTAND WHAT YOU'RE GETTING

BUT, YES, I'M WHERE THE BUCK STOPS, YES.

I TOLD DICK

AND YOU DID THAT -THE COURT:

EXCUSE ME, COUNSEL.

I FEEL COMPELLED TO

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 591

925-212-5224

1884
WOODWORTH-CROSS/MATTHIAS
1

TELL YOU THAT --

2

MR. MATTHIAS:

3

THE COURT:

4

MR. MATTHIAS:

5

THE COURT:

6

I SEE.

-- TIME IS RUNNING OUT.
YES.

AND THIS IS A VERY IMPORTANT CASE.

YOU'LL GET ALL THE TIME YOU NEED, BUT I MAY NOT BE ABLE --

7

MR. MATTHIAS:

8

THE COURT:

9

MR. MATTHIAS:

NO.

DON'T CHANGE ANYTHING, BUT -I APPRECIATE IT, YOUR HONOR. TIME GOT

10

A LITTLE BIT AWAY FROM ME, AS WELL. ACTUALLY, BASICALLY, I HAVE

11

ONE QUESTION THAT IF THE PATTERN HOLDS WILL MORPH INTO THREE,

12

BUT LET'S GIVE IT A SHOT.

13

BY MR. MATTHIAS

14

Q.

15

THERE IS A WAY -- THERE ARE STATISTICAL TECHNIQUES AVAILABLE FOR

16

CONTROLLING FOR OR TAKING INTO ACCOUNT SUCH THINGS AS STRENGTH

17

OF EVIDENCE, CORRECT?

18

A.

YES.

19

Q.

AND THAT COULD HAVE BEEN DONE HERE, CORRECT, IF THE

20

DESIGNERS OF THE STUDY HAD WANTED TO?

21

A.

22

YOU ARE AWARE FROM YOUR EXPERIENCE IN OTHER STUDIES THAT

COULD HAVE BEEN DONE HERE IF THE DESIGNERS HAD WANTED TO.
I WOULD HAVE TO SAY AS A PRACTICAL MATTER PROBABLY

23

NOT, BECAUSE THE CODING EXERCISE WOULD HAVE VASTLY EXCEEDED THE

24

TIME THAT WE HAVE AVAILABLE.

25

Q.

DID YOU EMPLOY THOSE TECHNIQUES IN YOUR MCCLESKEY WORK?

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 592

925-212-5224

1885
WOODWORTH-CROSS/MATTHIAS
WE HAD A LOT MORE TIME IN MCCLESKEY.

1

A.

YES.

2

Q.

IS THAT A "YES"?

3

A.

YES.

4

Q.

YOU ALSO COULD HAVE ACCOUNTED FOR THE EFFECT OF MITIGATING

5

EVIDENCE RELATING SPECIFICALLY TO THE DEFENDANT'S CHARACTER AS

6

OPPOSED TO THE CIRCUMSTANCES SURROUNDING HIS CRIME, AND YOU DID

7

NOT DO THAT, EITHER, CORRECT?

8

A.

NOT MY DEPARTMENT.

9

Q.

BUT YOU KNOW IT WAS NOT DONE?

10

A.

YES.

11

Q.

AND YOU KNOW THAT IT COULD HAVE BEEN DONE BECAUSE YOU'RE

12

AWARE OF THE AVAILABILITY OF STATISTICAL TECHNIQUES FOR THAT

13

PURPOSE?

14

A.

15

I DON'T THINK THAT ADJUSTMENT IS RELEVANT IN THIS STUDY.

IF YOU WANT A LAY OPINION, WHICH I'M NOT QUALIFIED TO GIVE,

16
17

MR. MATTHIAS:

YOUR HONOR, I MOVE TO STRIKE THE LAST

COMMENT.

18

THE COURT:

19

MR. MATTHIAS:

20

THANK YOU, PROFESSOR.

21

THE WITNESS:

22

MR. LAURENCE:

23

THE COURT:

24
25

WOODWORTH.

SUSTAINED.
THANK YOU.

MY PLEASURE.
NOTHING FURTHER, YOUR HONOR.

OKAY. THANK YOU FOR TESTIFYING, PROFESSOR

YOU'RE EXCUSED.
THE WITNESS:

YOU'RE WELCOME, YOUR HONOR.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 593

925-212-5224

1886
1
2

THE COURT:
HERE.

3
4

I ASSUME WE WANT POST HEARING BRIEFS. DO WE WANT POST
HEARING ORAL ARGUMENT?

5
6

OKAY. LET'S DISCUSS WHERE WE GO FROM

MR. MATTHIAS:

WELL, ORAL ARGUMENT, I'VE ALWAYS

THOUGHT THAT'S AS VALUABLE AS THE JUDGE THINKS AND NEVER MORE.

7

THE COURT:

OKAY. WELL --

8

MR. MATTHIAS:

9

THE COURT:

OR LESS, I SUPPOSE, SO --

YES.

I'M OF THE MIND THAT THE MORE -- I

10

NEED ALL THE HELP I CAN GET.

11

PART, BECAUSE I TEND TO BENEFIT FROM ORAL MORE THAN WRITTEN,

12

ACTUALLY, ALTHOUGH I HAVE MORE TIME WITH THE WRITTEN.

13

MR. MATTHIAS:

AND IT WOULD BE HELPFUL TO ME, IN

I WAS GOING TO GUESS THAT YOU WERE

14

ACTUALLY -- YOU'D SEEN ENOUGH OF US, RATHER.

15

IT IS.

16

THE COURT:

17

MR. LAURENCE:

18

THE COURT:

19
20

BUT ORAL ARGUMENT

OKAY.
YES, YOUR HONOR.

LET'S -- HOW MUCH TIME DO YOU WANT FOR

THAT, TO GET READY FOR IT?
MR. MATTHIAS:

OH, YES. ONE POINT OF CLARIFICATION.

21

SPECIFIC TO THIS ISSUE?

22

HEARING HAS BEEN CONDUCTED?

23

THE COURT:

24

MR. MATTHIAS:

25

THE COURT:

OR TO ALL OF THE ISSUES ON WHICH

I WAS THINKING OF THIS ISSUE.
OH, ON THIS ISSUE ALONE?

YES.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 594

925-212-5224

1887
1

MR. MATTHIAS:

2

THE COURT:

3

NO. NO. WELL, THAT WOULD BE INEFFICIENT.

LET'S TALK ABOUT ALL ISSUES.

4

MR. MATTHIAS:

5

THE COURT:

6

MR. MATTHIAS:

7

WELL, I'M READY TODAY.

OKAY.

TALK ABOUT ALL ISSUES.
THAT WILL CERTAINLY REQUIRE MORE TIME,

THEN.

8

THE COURT:

YES.

9

MR. LAURENCE:

IT CERTAINLY WOULD.

AND I WAS GOING

10

TO SUGGEST THAT WE BIFURCATE.

11

NARROWING ISSUE, I THINK, GIVEN MY TIME LINE OVER THE NEXT

12

COUPLE OF MONTHS.

13

ISSUES AFTER THAT.

14
15

IT'S MUCH EASIER TO DO THE

AND THEN, DOING THE MORE COMPLEX FACTUAL

WE'VE NOT DISCUSSED THIS, BUT I'M CERTAINLY -- EITHER
WAY WOULD BE FINE WITH ME, I JUST DO HAVE --

16

THE COURT:

WELL, EITHER WAY WOULD BE FINE WITH ME.

17

I'M SORRY TO NOT BE MORE HELPFUL IN DIRECTING THIS, WHICH IS

18

PROBABLY MY JOB.

19

MR. MATTHIAS:

WELL, I'M NOT BEING ANY MORE HELPFUL.

20

I SEE THE ADVANTAGES OF BIFURCATING.

21

NOT.

22
23

THE COURT:

I SEE THE ADVANTAGES OF

LET'S -- WANT TO THINK ABOUT IT AND GET

ON THE PHONE?

24

MR. LAURENCE:

25

THE COURT:

OKAY.

TALK, THINK ABOUT IT, AND THEN SET UP A

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 595

925-212-5224

1888
1

PHONE.

YOU WON'T HAVE TO COME BACK IN.

2

SCHEDULE, THAT'S EVEN BETTER.

3

MR. MATTHIAS:

4

THE COURT:

5

MR. LAURENCE:

IF YOU CAN SET UP A

AND WE JUST FILE IT.

YES, LET'S DO THAT.
YOUR HONOR, WE'VE ADDED SOME

6

ADDITIONAL EXHIBITS THIS MORNING THAT I WANTED TO GO OVER VERY

7

QUICKLY.

8
9

EXHIBIT 228 WAS REFERRED TO DURING THE DIRECT EXAM -REDIRECT EXAMINATION OF PROFESSOR BALDUS. IT IS THE CODING

10

INFORMATION AS WELL AS THE CODING OF SPECIFIC QUESTIONS THAT WAS

11

DISCLOSED TO RESPONDENT IN DECEMBER OF 2009.

12

I'D LIKE TO MOVE ITS ADMISSION NOW. IT IS SUBJECT TO

13

A STIPULATION BETWEEN THE PARTIES AS WELL AS THIS COURT'S ORDER.

14

I WOULD LIKE TO MOVE THAT INTO EVIDENCE.

15

MR. MATTHIAS:

16

THE COURT:

17

(THEREUPON, PETITIONER'S EXHIBIT 228 WAS RECEIVED IN

18
19
20

I HAVE NO OBJECTION TO 228.

OKAY.

228 WILL BE ADMITTED.

EVIDENCE.)
MR. LAURENCE:

224 WAS ADMITTED ON FRIDAY. THAT IS

SUBJECT TO A STIPULATION BETWEEN THE PARTIES.

21

THE COURT:

OKAY.

22

MR. LAURENCE:

I WOULD LIKE TO THEN CERTAINLY -- I'D

23

LIKE TO HAVE IT SEALED, ACTUALLY, UNTIL WE CAN RESOLVE HOW WE

24

DEAL WITH IT UNTIL AT THE END OF THE HEARING.

25

THE COURT:

OKAY. IT WILL BE SEALED UNTIL SUCH TIME

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 596

925-212-5224

1889
1

AS YOU RESOLVE THAT.

2

MR. LAURENCE:

EXHIBITS 229 TO 238 ARE THE PROBATION

4

MR. MATTHIAS:

NO OBJECTION.

5

MR. LAURENCE:

THE TEN CASES.

6

MR. MATTHIAS:

NO OBJECTION.

3

7

REPORTS.

OUT OF HERE.

NO OBJECTION.

I KNOW YOU NEED TO GET

ALL TEN PROBATION REPORTS ARE FINE.

8

THE COURT:

9

(THEREUPON, PETITIONER'S EXHIBIT 229 WAS RECEIVED IN

10

EVIDENCE.)

11
12

(THEREUPON, PETITIONER'S EXHIBIT 230 WAS RECEIVED IN
EVIDENCE.)

13
14

(THEREUPON, PETITIONER'S EXHIBIT 231 WAS RECEIVED IN
EVIDENCE.)

15
16

(THEREUPON, PETITIONER'S EXHIBIT 232 WAS RECEIVED IN
EVIDENCE.)

17
18

(THEREUPON, PETITIONER'S EXHIBIT 233 WAS RECEIVED IN
EVIDENCE.)

19
20

(THEREUPON, PETITIONER'S EXHIBIT 234 WAS RECEIVED IN
EVIDENCE.)

21
22

(THEREUPON, PETITIONER'S EXHIBIT 235 WAS RECEIVED IN
EVIDENCE.)

23
24
25

THOSE WILL BE ADMITTED.

(THEREUPON, PETITIONER'S EXHIBIT 236 WAS RECEIVED IN
EVIDENCE.)
(THEREUPON, PETITIONER'S EXHIBIT 237 WAS RECEIVED IN
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 597

925-212-5224

1890
1

EVIDENCE.)

2
3
4

(THEREUPON, PETITIONER'S EXHIBIT 238 WAS RECEIVED IN
EVIDENCE.)
MR. LAURENCE:

239 IS CORRESPONDENCE BETWEEN

5

PETITIONER AND RESPONDENT CONCERNING THE BALDUS STUDY

6

DISCLOSURES.

7

IT'S LETTERS AND E-MAILS BACK AND FORTH ABOUT

8

INFORMATION THAT CAME UP DURING FRIDAY'S CROSS-EXAMINATION. I

9

JUST WANTED TO CLARIFY THE RECORD WITH RESPECT TO THOSE ITEMS.

10

MR. MATTHIAS:

WELL, I DON'T KNOW WHAT IT CLARIFIES.

11

I CERTAINLY HAVE NO OBJECTION TO YOU READING A BUNCH OF E-MAILS

12

BETWEEN COUNSEL, BUT IT'S UTTERLY IRRELEVANT.

13

MR. LAURENCE ACKNOWLEDGED THAT HE DID NOT PROVIDE ME

14

WITH THE NARRATIVES THAT SUPERSEDED AND CORRECTED THE

15

THUMBNAILS.

16

PROFESSOR BALDUS TESTIFIED THAT SOMEWHERE BETWEEN 25

17

AND 33 PERCENT OF THE CASES WERE CHANGED ON THAT GROUND, HE

18

THOUGHT, BY VIRTUE OF THAT PROCESS. HE DESCRIBED THOSE AS

19

SUPERSEDING AND MORE DETAILED, MORE REVEALING OF THE RATIONALE

20

FOR THE CODING DECISIONS.

21

I DID NOT HAVE THAT, AND THAT WAS A SUBJECT OF MY

22

OBJECTION TO THAT PORTION OF PROFESSOR BALDUS' TESTIMONY THAT

23

VENTURED INTO THE CLEANING PROCESS, WHICH IS NOT DESCRIBED IN

24

HIS DECLARATION.

25

TIMES TO THE FACT OF IT HAVING HAPPENED.

THE WORD "CLEANING" APPEARS TWICE, AND BOTH

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 598

925-212-5224

1891
1

NO REFERENCE TO THE NARRATIVES.

IT ALSO CAME OUT

2

DURING EXAMINATION OF MY EXAMINATION OF PROFESSOR BALDUS THAT HE

3

REGARDS THE PROTOCOL TO INCLUDE SOME 20-PAGE DOCUMENT GENERATED

4

BY RICHARD NEWELL THAT HAS SOMETHING TO DO WITH CODING LIABILITY

5

OR LISTING SOME NUMBER OF CASES.

6

THAT HAS STILL NOT BEEN PROVIDED TO ME. SO, THIS

7

WHOLE THING ABOUT WHAT IS THE PROTOCOL, WHICH APPEARS TO BE AN

8

EVER EXPANDING AND CONTRACTING AND THEN EXPANDING DESIGNATION

9

AGAIN, IT IS WHAT IT IS.

BUT NONE OF THESE CORRESPONDENCE

10

ADDRESSED THE CONCERNS I HAD, WHICH WAS NOT BEING PROVIDED THAT

11

PORTION OF THE NEWELL DOCUMENT AND THE NARRATIVES.

12

AND IT'S THE LATTER THAT ACTUALLY DOVETAILS WITH MY

13

CONCERN ABOUT THE FAILURE OF THAT WITNESS TO PROVIDE ANY

14

DESCRIPTION OF THE CODING -- OF THE CLEANING PROCESS IN HIS

15

DECLARATION, WHICH MR. LAURENCE SPENT, I'D SAY, SOMEWHERE

16

BETWEEN THREE AND FIVE MINUTES ON IN HIS DIRECT EXAMINATION.

17

AND I OBJECTED BECAUSE IT SHOULD HAVE BEEN IN THE DECLARATION IF

18

IT'S IMPORTANT.

19

AND THERE'S A PAPER TRAIL OF THAT CLEANING PROCESS.

20

IT'S CALLED THE NARRATIVES, AND THERE ARE 1900 OF THEM.

21

WASN'T GIVEN THEM.

22
23
24
25

AND I

SO YOU CAN READ THESE CORRESPONDENCE IF YOU WANT, BUT
IT WON'T SPEAK TO ANY OF THE POINTS THAT I JUST RAISED.
THE COURT:

OKAY.

LET'S DO THIS. I'LL ADMIT THEM

SUBJECT TO MY DETERMINATION AS TO THEIR RELEVANCE.
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 599

925-212-5224

1892
1
2

(THEREUPON, PETITIONER'S EXHIBIT 239 WAS ADMITTED
INTO EVIDENCE AS OUTLINED ABOVE.)

3

MR. LAURENCE:

AND AS I STRESSED ON FRIDAY, YOUR

4

HONOR, WE'RE MORE THAN HAPPY TO TURN OVER THE NARRATIVES TO

5

COUNSEL FOR RESPONDENT, IF THEY WOULD LIKE THEM.

6

THEY WERE PROVIDED TO ME EARLIER THIS MONTH, AS

7

PROFESSOR BALDUS TESTIFIED.

8

TO YOU.

9

MR. MATTHIAS:

MORE THAN HAPPY TO TURN THEM OVER

WELL, THE DATE ON WHICH THEY ARE

10

TURNED OVER BY THE EXPERT TO COUNSEL IS NOT DETERMINATIVE OF

11

COUNSEL'S DUTY TO FIND THEM AND GIVE THEM TO ME, PARTICULARLY IN

12

LIGHT OF MY REQUEST FOR THE THUMBNAILS, WHICH WERE SUPERSEDED

13

AND CORRECTED.

14

MR. LAURENCE:

YOUR HONOR?

15

MR. MATTHIAS:

AND I JUST WANT TO ALSO EMPHASIZE I'LL

16

TAKE WHAT I CAN, BUT THAT DOESN'T BEGIN TO ADDRESS THE PREJUDICE

17

THAT WE SUFFERED BY NOT HAVING THAT STUFF IN ADVANCE OF THE

18

HEARING, OBVIOUSLY.

19

PAINS TO LOOK AT THIS MATERIAL IN SOME DETAIL.

20

FIND OUT THAT THE MATERIAL I WAS LOOKING AT WAS CLEANED IN THIS

21

ELABORATE PROCESS INVOLVING FIVE STUDENTS, WHO AREN'T MENTIONED

22

IN THE DECLARATION, AND THE GENERATION OF AN ADDITIONAL PAPER

23

TRAIL CALLED "NARRATIVES" WHICH AREN'T MENTIONED IN THE

24

DECLARATION, AND WHICH WEREN'T PROVIDED TO ME, THAT MAKES IT A

25

DIFFERENT CASE IN SOME RESPECTS.

I THINK THE COURT CAN SEE.

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 600

I WENT TO SOME
AND THEN, TO

925-212-5224

1893
1

AND COUNSEL'S OWN WITNESS DESCRIBED THAT AS AFFECTING

2

SOMEWHERE BETWEEN 25 AND 33 PERCENT, WHICH IS SOMEWHERE LIKE

3

SOMEWHERE BETWEEN FIVE AND 600 CASES.

4

INSIGNIFICANT.

5

AND IT'S NOT

I STRONGLY URGE THAT THAT PORTION OF PROFESSOR

6

BALDUS' TESTIMONY BE STRICKEN. IT SHOULD HAVE BEEN PROVIDED ON

7

DIRECT, AND I'VE NOT HEARD AN EXCUSE FOR WHY IT WASN'T PROVIDED.

8
9

BUT, I MEAN, COUNSEL THOUGHT IT WAS IMPORTANT ENOUGH
TO COVER AT THE HEARING, BUT HE DIDN'T THINK IT WAS IMPORTANT

10

ENOUGH TO PUT IN THE DECLARATION.

11

MAKE.

12

MR. LAURENCE:

AND THAT'S NOT HIS CHOICE TO

IF I COULD RESPOND, YOUR HONOR.

ON

13

NOVEMBER 2ND, WE TURNED OVER ALL THE DATA THAT WE WERE REQUIRED

14

TO TURN OVER.

15

PROFESSOR BALDUS TESTIFIED THREE TIMES THAT HE BASED

16

HIS DECISIONS ON PROBATION REPORTS.

17

THAT AT LEAST FIVE SETS OF TIMES THAT THE THUMBNAILS WERE NOT

18

BEING USED FOR FINAL CODING DECISIONS.

19

THE E-MAILS IN 239 CLARIFY

AND I REALLY DO TAKE SOME OFFENSE HERE THAT SOMEHOW

20

WE WERE OBLIGATED TO TURN OVER EVERY PIECE OF PAPER IN IOWA WHEN

21

THERE'S ABSOLUTELY NO OBLIGATION WHATSOEVER TO DO SO.

22

WE TURNED OVER THOUSANDS OF PAGES TO RESPONDENT.

23

EVERY REQUEST THEY MADE I GRANTED WITHOUT ANY JUDICIAL

24

INTERVENTION WHATSOEVER.

25

BALL FROM THEM IS TO ME -- IT STRIKES ME AS BEING ABSOLUTELY

AND TO SAY THAT WE SOMEHOW HID THE

KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 601

925-212-5224

1894
1

RIDICULOUS.

2

THE COURT:

OKAY. I UNDERSTAND THE POSITIONS.

3

SO TURN OVER --

4

MR. LAURENCE:

5

THE COURT:

6

DOCUMENTS OVER TO MR. MATTHIAS.

SO WE MAY REVISIT IT, TURN THOSE

7

MR. LAURENCE:

8

THE COURT:

9

I WILL, YOUR HONOR.

OKAY. ANY OTHER DOCUMENTS YOU'RE

OFFERING?

10

MR. LAURENCE:

11

THE COURT:

12

239, YES.

NO, YOUR HONOR.

OKAY. OKAY, THEN.

THAT'S IT.
I'LL WAIT TO HEAR FROM

YOU ON OUR FURTHER SCHEDULE HERE, COUNSEL.

13

MR. MATTHIAS:

THANK YOU, YOUR HONOR.

14

MR. LAURENCE:

THANK YOU, YOUR HONOR.

15

MR. MATTHIAS:

HAVE A NICE HOLIDAY.

16

THE COURT:

17

YOU, TOO.

(THEREUPON, THIS HEARING WAS CONCLUDED.)

18
19
20
21
22
23
24
25
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 602

925-212-5224

1895
1

I N D E X

2

PETITIONER WITNESS

3

GEORGE WOODWORTH

4

DIRECT EXAMINATION BY MR. LAURENCE

PAGE 1844

5

CROSS-EXAMINATION BY MR. MATTHIAS

PAGE 1855

6
7
8

PETITIONER'S EXHIBITS INTO EVIDENCE

9

218

PAGE 1845

10

228

PAGE 1888

11

229

PAGE 1889

12

230

PAGE 1889

13

231

PAGE 1889

14

232

PAGE 1889

15

233

PAGE 1889

16

234

PAGE 1889

17

235

PAGE 1889

18

236

PAGE 1889

19

237

PAGE 1889

20

238

PAGE 1890

21

239

PAGE 1892

22
23
24
25
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 603

925-212-5224

1896
1
2

CERTIFICATE OF REPORTER
I, KATHERINE WYATT, THE UNDERSIGNED, HEREBY CERTIFY

3

THAT THE FOREGOING PROCEEDINGS WERE REPORTED BY ME, A CERTIFIED

4

SHORTHAND REPORTER, AND WERE THEREAFTER TRANSCRIBED BY ME INTO

5

TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE

6

RECORD OF SAID PROCEEDINGS.

7

I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR

8

ATTORNEY FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING

9

PROCEEDINGS AND CAPTION NAMED, OR IN ANY WAY INTERESTED IN THE

10
11

OUTCOME OF THE CAUSE NAMED IN SAID CAPTION.
THE FEE CHARGED AND THE PAGE FORMAT FOR THE

12

TRANSCRIPT CONFORM TO THE REGULATIONS OF THE JUDICIAL

13

CONFERENCE.

14
15

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS
8TH DAY OF DECEMBER, 2010.

16
17
18
19
20

__________________________________
/S/ KATHERINE WYATT

21
22
23
24
25
KATHERINE WYATT, OFFICIAL REPORTER, RPR, RMR
Exhibit L
Page 604

925-212-5224

1
2
3
4
5
6
7
8
9

MICHAEL LAURENCE, State Bar No. 121854
PATRICIA DANIELS, State Bar No. 162868
CLIONA PLUNKETT, State Bar No. 256648
HABEAS CORPUS RESOURCE CENTER
303 Second Street, Suite 400 South
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Petitioner ERNEST DEWAYNE JONES

10
11
12

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORINIA, SOUTHERN DIVISION

13
14
15

ERNEST DEWAYNE JONES,

Case No. CV-09-2158-CJC

Petitioner,

DEATH PENALTY CASE

16
17
18
19
20

v.
VINCENT CULLEN, Warden of
California State Prison at San Quentin,
Respondent.

21
22
23
24
25
26

EXHIBITS IN SUPPORT OF MOTION FOR AN EVIDENTARY HEARING
VOLUME 1
EXHIBIT M
LEGISLATIVE HISTORY MATERIAL REGARDING CALIFORNIA'S DEATH
PENALTY STATUTES
(PART 1 OF 4)

27
28

Exhibit M
Page 605

INDEX

#

Description

Page No.

1

1973 Cal. Stat. c. 719, §§ 1- 5 (S.B. 450); Senate Final History 1973 Cal. Stat.
c.719, §§ 1- 5 (S.B. 450).

610 - 619

2

Constitutional Issues Relative to the Death Penalty: Special Hearing of the
California Assembly Committee on Criminal Justice, January 24, 1977
(transcript).

620 - 684

3

Letter from Tom Bane, Assemblyman, California Assembly, to Mark Waldman,
Legislative Counsel, American Civil Liberties Union (May 23, 1977).

685

4

Press Release, Office of Governor Edmund G. Brown (May 27, 1977).

686

5

1977 Cal. Stat. c. 316, §9 (S.B. 155), effective August 11, 1977.

687 - 700

6

Senate Final History, 1977 Cal. Stat. c. 316, §9 (S.B. 155), effective August 11,
1977.

701 - 702

7

Letter from Senator John V. Briggs, Co-Chairman, Citizens for an Effective
Death Penalty, to Concerned Citizen (undated).

8

California Voters Pamphlet, General Election, Nov. 7, 1978, at 32-46.

705 - 715

9

California Assembly Committee on Public Safety, Bill Analysis, Senate Bill No.
2054 (1979-80 Reg. Sess.) as amended May 6, 1980; Senate Committee on
Judiciary, Bill Analysis, Senate Bill No. 2054 (1979-80 Reg. Sess.) as introduced.

716 - 721

10

Letter to John Briggs, Senator, California Legislature, from James R. Tucker,
Legislative Advocate, American Civil Liberties Union (June 13, 1980).

722

11

Miscellaneous Campaign Materials: Californians to Defeat Rose Bird (19851986).

723 - 739

12

Joint Hearing on Crime Victims Justice Reform Act, Proposition 115 on the June
1990 Ballot: California Senate Committee on Judiciary and Assembly Committee
on Public Safety, December 11, 1989 (transcript, staff analysis, written testimony
in support of and opposition to initiative).

740 – 1011

13

1990 Crime Victims Justice Reform Initiative, Proposition 115 Manual: State of
California Department of Justice (1990).

1013 - 1253

Exhibit M
Page 606

703

#

Description

Page No.

14

California Ballot Pamphlet, Primary Election (June 5, 1990), Full Text of
Proposition 115.

1255 - 1279

15

California Ballot Pamphlet, Primary Election (June 5, 1990), Full Text of
Proposition 114.

1280 - 1283

16

California Senate Committee, Bill Analysis, March 30, 1993 Hearing, Senate Bill
No. 310 (1993-94 Reg. Sess.), as amended March 29, 1993.

1284 - 1287

17

California Assembly Committee on Public Safety, Bill Analysis, July 13, 1993
Hearing, Senate Bill No. 60 (1993-94 Reg. Sess.), as proposed to be amended.

1288 - 1290

18

California Senate Bill 32 (1995-96 Reg. Sess.), Bill Text, as introduced Dec. 9,
1994.

1291 - 1294

19

Letter to The Honorable Steve Peace, Member, California Senate, from Gregory
D. Totten, Executive Director, California District Attorneys Association (March
6, 1995).

1295

20

California Senate Committee on Criminal Procedure, Analysis, March 7, 1995
Hearing, Senate Bill No. 32 (1995-96 Reg. Sess.), as proposed to be amended.

1296 - 1309

21

California Senate Committee on Criminal Procedure, Analysis, March 7, 1995
Hearing, Senate Bill No. 9 (1995-96 Reg. Sess.), as introduced.

1310 - 1311

22

Letter to Governor Pete Wilson, from Senator Steve Peace, California State
Senate (Sept. 15, 1995).

1312 - 1317

23

California Department of Finance, Enrolled Bill Report, Senate Bill No. 9 (199596 Reg. Sess.), as amended Aug. 21, 1995 (Sept. 22, 1995).

1318 - 1320

24

California Ballot Pamphlet, Primary Election (March 26, 1996), Full Text of
Proposition 195.

1321 - 1333

25

California Ballot Pamphlet, Primary Election (March 26, 1996), Full Text of
Proposition 196.

1334 - 1346

26

Letter to Mr. Charles Fennessey, Deputy Legislative Secretary, Governor’s
Office, from Gregory D. Totten, Chief Deputy District Attorney, Office of the
District Attorney, Ventura County, California (Dec. 4, 1997).

1347 - 1349

Exhibit M
Page 607

#

Description

Page No.

27

California Senate Committee on Public Safety, Analysis, April 21, 1998 Hearing,
Senate Bill No. 1878 (1997-98 Reg. Sess.), as introduced as reflected by
proposed amendments.

1350 - 1362

28

Letter to The Honorable Quentin L. Kopp, California State Senate, from Gregory
D. Totten, Chief Deputy District Attorney and Peter D. Kossoris, Senior Deputy
District Attorney, Office of the District Attorney, Ventura County, California
(April 23, 1998).

1363 -1365

29

California Department of Finance, Bill Analysis, Senate Bill No. 1878 (1997-98
Reg. Sess.), as amended April 28, 1998 (May 13, 1998).

1366 - 1367

30

California Assembly Republican Bill Analysis, Senate Bill No. 1878 (1997-98
Reg. Sess.), as amended July 16, 1998.

1368 - 1369

31

California Assembly Committee on Public Safety, Analysis, June 23, 1998
Hearing, Senate Bill No. 1878 (1997-98 Reg. Sess.), as proposed to be amended.

1370 - 1386

32

Letter to The Honorable Gray Davis, Lieutenant Governor, State of California,
from Quentin L. Kopp, California State Senator (July 20, 1998).

1387 - 1388

33

California Assembly Committee on Appropriations, Analysis, July 29, 1998
Hearing, Senate Bill No. 1878 (1997-98 Reg. Sess.), as amended July 16, 1998.

1389 - 1391

34

California Assembly, Third Reading, Assembly Bill No. 1574 (1999-2000 Reg.
Sess.), as introduced Feb. 26, 1999.

1392 - 1393

35

California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 1574 (1999-2000 Reg. Sess.), as introduced Feb. 26,
1999.

1394 - 1398

36

California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 3 (1999-2000 Reg. Sess.), as introduced Dec. 7,
1999.

1399 - 1407

37

California Assembly Committee on Public Safety, Analysis, April 13, 1999
Hearing, Assembly Bill No. 625 (1999-2000 Reg. Sess.), as amended April 7,
1999.

1408 - 1412

38

California Senate Rules Committee, Third Reading, Analysis, Assembly Bill No.
1574 (1999-2000 Reg. Sess.), as introduced (Sept. 2, 1999).

1413 - 1417

Exhibit M
Page 608

#

Description

Page No.

39

California Ballot Pamphlet, General Election (March 7, 2000), Full Text of
Proposition 18.

1418 - 1426

40

1998 Cal. Stat. c. 629, § 2 (S.B. 1878) as chaptered Sept. 21 1998, approved by
Proposition 18 on March 7, 2000, effective March 8, 2000.

1427 - 1430

41

California Ballot Pamphlet, General Election (March 7, 2000), Full Text of
Proposition 21.

1431 - 1487

42

California Senate Committee on Public Safety, Analysis, June 18, 2002 Hearing,
Assembly Bill No. 1838 (2001-2002 Reg. Sess.), as amended March 7, 2002.

1488 - 1508

Exhibit M
Page 609

Exhibit M
Page 610

Exhibit M
Page 611

Exhibit M
Page 612

Exhibit M
Page 613

Exhibit M
Page 614

Exhibit M
Page 615

Exhibit M
Page 616

Exhibit M
Page 617

Exhibit M
Page 618

Exhibit M
Page 619

Exhibit M
Page 620

Exhibit M
Page 621

Exhibit M
Page 622

Exhibit M
Page 623

Exhibit M
Page 624

Exhibit M
Page 625

Exhibit M
Page 626

Exhibit M
Page 627

Exhibit M
Page 628

Exhibit M
Page 629

Exhibit M
Page 630

Exhibit M
Page 631

Exhibit M
Page 632

Exhibit M
Page 633

Exhibit M
Page 634

Exhibit M
Page 635

Exhibit M
Page 636

Exhibit M
Page 637

Exhibit M
Page 638

Exhibit M
Page 639

Exhibit M
Page 640

Exhibit M
Page 641

Exhibit M
Page 642

Exhibit M
Page 643

Exhibit M
Page 644

Exhibit M
Page 645

Exhibit M
Page 646

Exhibit M
Page 647

Exhibit M
Page 648

Exhibit M
Page 649

Exhibit M
Page 650

Exhibit M
Page 651

Exhibit M
Page 652

Exhibit M
Page 653

Exhibit M
Page 654

Exhibit M
Page 655

Exhibit M
Page 656

Exhibit M
Page 657

Exhibit M
Page 658

Exhibit M
Page 659

Exhibit M
Page 660

Exhibit M
Page 661

Exhibit M
Page 662

Exhibit M
Page 663

Exhibit M
Page 664

Exhibit M
Page 665

Exhibit M
Page 666

Exhibit M
Page 667

Exhibit M
Page 668

Exhibit M
Page 669

Exhibit M
Page 670

Exhibit M
Page 671

Exhibit M
Page 672

Exhibit M
Page 673

Exhibit M
Page 674

Exhibit M
Page 675

Exhibit M
Page 676

Exhibit M
Page 677

Exhibit M
Page 678

Exhibit M
Page 679

Exhibit M
Page 680

Exhibit M
Page 681

Exhibit M
Page 682

Exhibit M
Page 683

Exhibit M
Page 684

Exhibit M
Page 685

Exhibit M
Page 686

Exhibit M
Page 687

Exhibit M
Page 688

Exhibit M
Page 689

Exhibit M
Page 690

Exhibit M
Page 691

Exhibit M
Page 692

Exhibit M
Page 693

Exhibit M
Page 694

Exhibit M
Page 695

Exhibit M
Page 696

Exhibit M
Page 697

Exhibit M
Page 698

Exhibit M
Page 699

Exhibit M
Page 700

Exhibit M
Page 701

Exhibit M
Page 702

Exhibit M
Page 703