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#20 McCleskey v. Kemp
20 Plays25 days ago
In the season 2 finale we re-argue the Supreme Court case McCleskey v. Kemp.
WM, a Black man, was sentenced to death for murder. On appeal, he submitted statistical evidence to show that the race of the victim (and, to a lesser extent, of the defendant) is associated with whether the defendant gets sentenced to death or not.
The question before the court: does statistical evidence of racial disparities in a state’s capital sentencing system prove racism? Does the evidence make that system unconstitutional under the 8th and 14th amendments?
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Transcript
Introduction to 'Relitigated' Podcast
00:00:00
Speaker
Hi, and welcome to Relitigated, the show where five friends who are absolutely not lawyers attempt to retry a real Supreme Court case. I'm your host, Nikki, and this is episode 20, McCluskey versus Kemp, decided 1987.
00:00:18
Speaker
A quick note before we get started. As always, we try our best to represent the facts and decisions in the case as accurately as possible, but we're not lawyers and nothing in this episode should be taken as legal advice.
00:00:32
Speaker
With that out of the way, let's start the show.
Meet the Hosts and Justices
00:00:37
Speaker
I can't appear flip tables and chew gum and I'm all out of gum.
00:00:42
Speaker
I'm also out of tables, so don't know about music tables.
00:00:47
Speaker
And on that note, hello and welcome to the Relitigated Podcast. I am your host, Nikki, and I'm joined by my co-host, Jarrett. Say hi, Jarrett.
00:00:58
Speaker
Hello. We have with us so three friends who will be role-playing as our justices. First, we have Associate Justice Graham. I'm just thrilled that you called me a friend. Thank you so much.
00:01:12
Speaker
You're welcome and always. Next, we have Associate Justice Preston. Happy to be here. Thank you. I know you don't mean it. And... Not after last episode.
00:01:31
Speaker
Worth it. And lastly, we have our Chief Justice, Chris. Oh, okay. Okay. Sure. Hi. Yeah. He who wears the powdered wig.
00:01:43
Speaker
Wait, i have I have my fedora. ah please Please put that on. Oh, Graham, you're chief now. Thank you. thank you Thank you very much for the honor.
00:01:57
Speaker
Sorry, I'm not host. I don't have that power.
Mock Trial Process Explained
00:02:01
Speaker
So if you're new to the show, here's how this works. Jarrett and I have selected a real Supreme Court case, and our justices do not know what case we have selected. Jarrett will introduce the case to us and walk us through the facts so we can all get familiar with the details.
00:02:16
Speaker
The justices are free to ask factual questions during this time, and we will answer as best as we can. Next, we'll move into oral arguments where I will role play as the petitioner and Jarrett will role play as the respondent.
00:02:30
Speaker
We each get seven minutes to make our case, during which time the justices can interrupt us and ask probing questions. When the arguments are over, the justices will deliberate and deliver their own opinions.
00:02:41
Speaker
The final rulings do not need to be unanimous. Majority opinion wins. Even if two or more justices agree in principle, they can disagree as to why. Once we've had our fun with our mock hearing, Jarrett and I will reveal what the Supreme Court really decided and talk about how we feel about the actual results and why this case matters.
00:03:00
Speaker
Sound good to everybody? Yep. Sounds good. All right. And I will turn it over to Jarrett. All right. Thank you very much, Nikki. Our case for this episode is McCluskey v. Kemp.
00:03:15
Speaker
One day in Atlanta, Georgia, four armed men entered the Dixie's Furniture Store with the intent to rob the place. One man entered from the front of the building and rounded up the customers, while the other three men came in through the back of the building and tied up the employees.
00:03:31
Speaker
During the initial stages of the robbery, and unbeknownst to the robbers, a silent alarm had been triggered, resulting in an Atlanta police officer responding to and entering the store.
00:03:42
Speaker
While there were no witnesses to exactly what happened next, as the officer walked down the center aisle of the store, two shots rang out, and the officer was struck twice and killed. As far as we know, no one was apprehended at the scene, but four men were eventually arrested for the crime.
00:03:59
Speaker
One pleaded guilty and agreed to testify against the other three in exchange for 20-year sentence for armed robbery. Two were tried together and convicted of armed robbery and murder, with each getting life sentences.
00:04:14
Speaker
The last individual, W.M., was tried alone for armed robbery and murder. Prior to the trial, W.M. reportedly admitted to police that he had been involved in the robbery, though he denied shooting the police officer.
00:04:29
Speaker
At his trial, he renounced his confession entirely and presented an alibi for his whereabouts on the day. In response, the prosecution presented a case that included the following.
00:04:40
Speaker
Witness testimony of a man fleeing the scene with a pearl-handled pistol. Witness testimony that W.M. had stolen a pearl-handled pistol earlier in the day with the same caliber as the gun that killed the officer.
00:04:54
Speaker
testimony from the other robber that W.M. carried a pearl-handled pistol during the robbery, and testimony from the other robber that W.M. had admitted to shooting the police officer.
00:05:05
Speaker
Ultimately, W.M. was found guilty of armed robbery and murder. Following the conviction, the prosecution sought the death penalty, which triggered a second hearing. This is because under Georgia and U.S. law, death penalty cases require two separate hearings.
00:05:22
Speaker
The first determines guilt, the second is for sentencing and requires a jury to find at least one aggravating circumstance beyond a reasonable doubt was present in order to apply the death penalty.
00:05:36
Speaker
In this case, there were two aggravating circumstances found by the jury. First, that the murder occurred during an armed robbery, and second, that the victim of the murder was an officer engaged in their official duties.
00:05:50
Speaker
The defense provided no mitigating circumstances. Given the aggravating circumstances, the jury recommended that W.M. be sentenced to death for the murder and consecutive life sentences for the armed robbery charges.
00:06:04
Speaker
The judge accepted the recommendation, and so W.M. received the death penalty as his sentence for the murder of the Atlanta police officer. As you might expect, W.M. appealed his conviction and sentence, numerous times in fact.
The McCluskey v. Kemp Case Details
00:06:18
Speaker
A few of those appeals, on various grounds that we're not going to explore in this episode, did make it all the way to the Supreme Court, and with each one, the court declined to provide any relief.
00:06:30
Speaker
It just so happens that several academics, specifically David Baldus, George Woodworth, and Charles Pulaski, were conducting research into George's death penalty. They were trying to use new research methods to determine whether there were any disparities in how the death penalty was applied.
00:06:47
Speaker
And between two separate reports, they argued that the race of the victim did impact whether or not prosecutors would seek the death penalty and whether or not juries would apply it.
00:06:59
Speaker
Armed with these studies, WM's legal defense team challenged his sentence by arguing in district court that bias in the system meant that the system itself violated WM's Eighth Amendment freedom from cruel and unusual punishment and his Fourteenth Amendment right to equal protection under the law.
00:07:19
Speaker
The district court rejected the constitutional claims, and the United States Court of Appeals for the Eleventh Circuit concurred. So the question for our justices is, should WM's death sentence be thrown out because statistical evidence of racial bias in the application of the death penalty means that Georgia's system violates WM's 8th and 14th Amendment rights?
00:07:44
Speaker
Any questions? Just checking in here, is there any way we could get information on those statistics, like the evidence that you're talking about? Because it feels like that's relevant.
00:07:57
Speaker
Absolutely. I have gone a little bit down a rabbit hole. So the specific studies that ah were used for this case...
00:08:08
Speaker
I think there were two of them, but I can't actually find the specific studies themselves. But these were, i think there was one was called Procedural Reform of Jury Murder Convictions in Georgia, and the other one was called Charging and Sentencing of Murder and Voluntary Manslaughter Cases in Georgia.
00:08:26
Speaker
But these three authors published a myriad of papers on this topic over at least about a decade so around this case. So,
00:08:38
Speaker
What they but they did specifically was take, I think it was over 1,000 death penalty cases. It was all of the death penalty cases.
00:08:49
Speaker
Yes, but it was, okay. They took all of the death penalty cases, which numbered, I believe, between 1,000 and 2,000. yeah just In Georgia during in georgia yeah during this during this time.
00:09:03
Speaker
And categorized each one of those cases according to, um want to say it was 20 some odd, 30 some odd factors. you know What was the race of the perpetrator? What was the race of the victim?
00:09:20
Speaker
What was How many of the different aggravating circumstances were present? ah well Was it an urban setting or rural setting? right All of these different characteristics that defined the case.
00:09:33
Speaker
They then put cases into different categories based off ah ah that they kind of ranked from one to six based off of like... how essentially how heinous was the crime is the best way i think i can describe it you know um level one being like and all of them involved i believe believe murder but like level one was like you know an act of passion or self-defense, whereas six might be premeditated, planned, purposefully executed kind of murder.
00:10:05
Speaker
They then tried to, ah using statistical methodologies, I believe they used a linear regression for any math nerds out there, or actually think they tried to use it. Specifically, they tried to use a logarithmic regression.
00:10:19
Speaker
So that's, there you go, math nerds. to see if there, which factors popped out as having an outsized influence on your probability of getting the death penalty.
00:10:34
Speaker
And what they found was when the victim was white, the perpetrator was, it was statistically significant that you were more likely to get the death penalty.
00:10:47
Speaker
So if the victim was white, you were more likely to get the death penalty than if the victim was black. They also ah obviously checked to see if it mattered if the defendant was white or black.
00:11:00
Speaker
They said that there was ah difference, but from an academic perspective, that difference didn't rise to the level of statistical significance.
00:11:13
Speaker
but the the difference was there ah nonetheless. So if you were a black man, of a black person who murdered a white person, not only was it more likely that you would get the death penalty because the white, because the victim was white, but it was also slightly more likely that you would get the death penalty because you were black.
00:11:33
Speaker
This is just in Georgia, like the cases in Georgia. For the purposes of this case, were specifically talking about their study in Georgia.
00:11:43
Speaker
i believe i believe I believe they eventually did ah all the other states, but this was the first one. So from their statistical analysis, the key factor here was the victim's race.
00:11:57
Speaker
And the defendant's race was, I guess, less, you know, important, impactful to their death. they were like The statistics were negligible in that.
00:12:10
Speaker
going Yeah. So when you say the key factor in terms of race effects specifically, yes. um Just to make sure that's clear. And yeah, the, the defendant's race was less significant or, or non-significant statistically.
00:12:27
Speaker
Statistically. Yep. What they were trying to do was determine a methodology in order to find out if there was fairness in the sentencing.
00:12:44
Speaker
So not only the sentencing, but when did when did prosecutors decide actually opt to push for the death penalty. So there's kind of two stages. The prosecutor has to has to try you with the intent of of going for the death penalty, and then the jury has to recommend that you get the death penalty. So they were looking at both of those dimensions.
00:13:06
Speaker
The race of the victim mattered in both circumstances. If the victim was white, the prosecutor was more likely to push for the death penalty, and the jury was more likely to give you the death penalty. date Now, the reason they were looking at this is because they wanted to determine if the system was fair in the sense that like if you looked at cases that were basically the same, you would expect that the same sentence would be given.
00:13:35
Speaker
And what they were trying to find was like, are there cases that are... That's why they were they were doing the categorization. They said, if we if we look at all the cases that are similar, Is there, do they get, do the people get the same sentences for them? Because if they do, that's a fair system is the argument.
00:13:50
Speaker
And what they said, what they found was, well, when we look at cases that are similar, we find that the race of the victim actually suddenly matters a lot as to whether you do or do not get the death penalty.
00:14:04
Speaker
So that was the, it's referred to as the baldest study, but I just want to be very clear that it was, it's baldest at all. There were two other gentlemen who were participants in developing and writing that that study.
00:14:18
Speaker
who So the question, it's it's really focusing in on the settings ah sentencing phase ah ah you know as that' the process. It's not necessarily the death penalty itself. It's just George's process for sentencing you of the death penalty that we're questioning here.
00:14:38
Speaker
Right. Yeah, WM is the complaint is that and the sentencing is racially motivated potentially, not because WM is a black or a white man, important to note WM was a black man, but because the victim was a white man.
00:15:02
Speaker
have If it's more likely that he got the death penalty because his victim was white, if his victim had been black, he wouldn't have he might not have gotten the death penalty. Well, that's That's unfair.
00:15:13
Speaker
And if it's unfair, then the system is broken and you have to toss the the death sentence. that is the That is the question before the court. But then there is also... um Oh, go ahead, Graham.
Analyzing Trial Evidence and Racial Disparities
00:15:27
Speaker
I was going to say that to be clear, though, we are separating the fact that the victim was white. Maybe this is for later, but we are separating... They are trying to separate the fact that the victim is white from the fact that the victim was also a police officer.
00:15:39
Speaker
but We're just looking at the racial component. Yeah. yeah there yeah the the The allegation is that because the system shows a bias, the sentence of this individual should be thrown out.
00:15:55
Speaker
Got it. And then I think also there was an impact of, because ah Jarrett was talking about basically the severity of the crime and and the circumstances, and he gave that sort of one to six point.
00:16:08
Speaker
you know, kind of delineation. so one where things were less severe, that was the case. Those would be cases where basically nobody ever sentenced the defendant to death, regardless of race. It was just, everybody just kind of agreed versus six,
00:16:26
Speaker
Those cases are severe enough where everybody agreed that the person should be put to death, regardless of race. But then we have this middle range where, you know, that's where the study was kind of looking at to see, you know, that's kind of where some of these effects were coming up. this If my read of that was ah accurate, Jarrett?
00:16:46
Speaker
Yep. Yep. That's right. So I think if you think of the one through six, it's sort of like, I think a good way to think about is like, was there one mitigating circumstance or was there one aggravating circumstance?
00:16:58
Speaker
Were there two, were there three, were there four, right? Like once you get to six out of six aggravating circumstances, a hundred percent of the time, those people got the death penalty. When there was just one aggravating circumstance, very unlikely that you got the death penalty.
00:17:13
Speaker
But if there was two, three, four, five, I think actually specifically 234, then it mattered a whole lot as to what the race of the victim was, according to the study.
00:17:27
Speaker
Was the murder weapon ever retrieved? I don't believe so. i don't have an answer to that, an exact answer to that question.
00:17:38
Speaker
But what I will tell you is I had the same question in my research and at no point did I see anything that mentioned ballistics. And i suspect if the weapon had been retrieved, Rather than arguing that the gun was the same caliber of the weapon, they would have said, we fired the weapon.
00:17:54
Speaker
We compared the bullet to the one that killed the officer. They came from the same gun. That was nowhere in my research, which makes me believe that the weapon was not recovered. Okay.
00:18:06
Speaker
But I mean, yeah. So he was found guilty in the first phase. um So the second phase is the, is, you kind of the focus. So I think the first phase, you can kind of take that as, you know, he was guilty.
00:18:21
Speaker
um But yeah, the second phase is kind of, it seems like- Phase two is what matters. Yeah, phase two is what matters. Yeah. Wait, what was the ah racial makeup of his- His cohort.
00:18:36
Speaker
Like the jury? No, no. Like his. Oh, of the. conisance sealerman I believe. His colleagues, if you will. Yeah, his colleagues. ah I don't think that ever was revealed in in the record.
00:18:54
Speaker
feel like that's pretty important. Because they all got different sentences. WM was the one that the one that the guy testified. had done the, uh, or actually the guy testified that w had m WM had admitted to shooting the officer. Okay. Yeah.
00:19:15
Speaker
I mean, just generally, i don't know if I trust the other robbers. Yeah. They probably are like, yeah, that guy killed them. I'm cool. You know?
00:19:27
Speaker
Sorry to ah bludgeon you with that report. It is a lot. ah i i I spent just a full day reading all of the various articles that they wrote, which were written based off the same methodology around the same time, including articles they wrote later when they were looking back on this case.
00:19:49
Speaker
And so, yeah, I went down a rabbit hole. So I'm glad that you asked. But also I realized that, like, That's a lot to go from knowing nothing about to suddenly knowing having someone explain to you in 10 minutes worth of talking and not have your eyes glaze over. So thanks for still being awake.
00:20:14
Speaker
I just have one clarifying question as well. So WM was convicted. WM, the jury recommends the death sentence. The judge accepts it. WM appeals.
00:20:26
Speaker
At what point during this span of time does the research kind of start and end? I don't know if that's important to the case, but it for me, it's interesting. they ah believe that the... It's hard to do this without giving you dates, but...
00:20:42
Speaker
Prior to the crime, these researchers were developing their methodology and and published at least one paper where they didn't talk about the results of the application of the methodology. They were they were writing as academics discussing what they thought could be a methodology to assess fairness.
00:21:08
Speaker
Then the crime happened. I believe WM was sentenced before the first article gets published by these academics where now they're saying, okay, we've done the thing that we thought would be a good idea.
00:21:27
Speaker
And here's what has come out of it. And so I think it's, It's after, because WM appealed a couple of times on a couple of different, right for a couple of different reasons.
00:21:43
Speaker
The actual results of this study, as far as like the, the findings of using the methodology came out. I don't fully actually know this because it's hard to say without actually having the the actual study in my hand, which I just could not get. Right.
00:22:02
Speaker
But it seems like based off of the arguments that I've read, it suggests to me that appeals failed. Suddenly this study comes to light.
00:22:14
Speaker
New appeal. Got it. That's helpful. It's interesting. if there If this was something that was done prior to his sentencing, I would find that to be interesting.
00:22:27
Speaker
The fact that it's in his at some point during his appeal phase, you know first that I think is interesting and relevant. So thanks. It stands to reason that WM's case was one of the cases that was in the data set for this study.
00:22:44
Speaker
Gotcha. Gotcha. which is probably just what I should have said originally.
00:22:53
Speaker
Makes lot of sense. Yeah. Wait, so could you, is there reason as to why two of the men were convicted separately and together?
00:23:06
Speaker
um That part isn't clear. i just, I think that it was, you know, they, the police caught who they caught when they caught them and then based off of what information they're able to get.
00:23:19
Speaker
let's see one pled guilty and agreed to testify. And then yeah, two and three were tried and convicted together. And then WM, WM was the one who got the murder.
00:23:31
Speaker
Um, no, yeah I know, I know that this isn't the case, but it would be, it would be interesting if if there was a racial divide there, I just, that would be that's what I was thinking. That'd be like really,
00:23:44
Speaker
pertinent to whatever, you know, statistical analysis that they did. So everybody else was white. And then they were just like, ah. I mean, that would make things so much easier, honestly. Yeah. um And I think that if that were known, yeah his his defense team would have like brought that in.
00:24:02
Speaker
Right. yeah um But yeah, it's really not clear from the record. Yeah, I think probably based on you know the the way that it was the way that the ah robbers were tried, the one guy testified against the other three.
00:24:20
Speaker
he basically point to he basically picked out the one guy, WM, uh, who ah he thought killed the cop. And then, so the cops basically, okay, the two of them were tried, convicted them and sent them to life.
00:24:35
Speaker
And then the prosecutor probably went after WM because the first guy pointed out and said, Hey, he killed him. Didn't we also say, correct me if I'm wrong, but wasn't also said in the facts that WM confessed and then he had, he completely recanted his confession was, could that be a reason that there was the the split between the two and the one?
00:24:57
Speaker
That did happen, but he only confessed to being party to the robbery. He did not confess yeah to shooting the police officer. Good distinction. He denied shooting the the guy and then later on said he had an alibi.
00:25:14
Speaker
Wasn't even there.
00:25:17
Speaker
Yeah. and So and I realize all of that was a lot. Any, any other factual questions we could pretend we know. Now i want to hear y'all argue. Get it.
00:25:30
Speaker
Get in the ring. in there. It's working.
00:25:38
Speaker
I'll allow it. All right. Our chief justice said,
00:25:45
Speaker
Please proceed. One last question. I'm i'm sorry, guys. do Do you know what his alibi was? Nope. It's not record. U-G-L-Y. Must have really sucked. yeah
00:26:04
Speaker
The defense was like, yeah we're not putting that in. I think I read somewhere that he actually took the stand, which I find to be crazy.
00:26:17
Speaker
Wouldn't you any half decent attorney wouldd be like, no, get down from there. Yeah, right? Yeah, but I think that if the if the the client insists on it, I think they have to let them, right?
00:26:29
Speaker
I don't know. I'm not a lawyer.
00:26:34
Speaker
They could strongly advise, but um if the person's like, no, I want to go forward with this bad decision. if the man wants to talk, I'm sure he can just... That's take your client into ah into the bathroom and you're just like, all right, man, talk.
00:26:50
Speaker
I've locked the door. It's just us.
00:26:54
Speaker
Get it out your system. This is not on a record. Get it out of your system and then we're going go back in there and you are never going to speak again. do you understand me? Okay. Okay.
00:27:11
Speaker
okay Well, ah I will be arguing on behalf of the petitioner, WM. And so Jared is going to put seven minutes on the clock.
00:27:25
Speaker
And then I will argue such an amazing, perfect, beautiful argument that I'll win.
00:27:35
Speaker
I'm going to put six minutes and 45 seconds on the clock because you have a
00:27:42
Speaker
Get to it. Okay. Okay.
00:27:48
Speaker
May it please the court. We come from a state with a dark history. During the antebellum era, the law explicitly stated that a black citizen could be given a death sentence for assaulting a white citizen.
00:28:08
Speaker
This court has since decided that if a state has laws that specifically impose different and harsher penalties on people simply because of race, those laws are unconstitutional.
00:28:23
Speaker
It's not even up for debate that this practice violates the Constitution. Despite the 14th Amendment granting individuals due process of law and equal protection of the law, the same nasty old habits persist.
00:28:38
Speaker
We have evidence of this in Georgia's capital sentcing sentencing system over the past decade.
00:28:46
Speaker
Prosecutors have great discretion. They make decisions about which cases
Arguments on Racial Bias and Justice System
00:28:52
Speaker
they're going to offer the defendant a plea deal. They decide when they're going to seek the death penalty.
00:29:00
Speaker
There are no guidelines or standards to ensure proper exercise of discretion. They are left on their own. And this is where bias lives, even in those with the best of intentions, but no opportunity or mechanism of self-examination.
00:29:17
Speaker
Juries are regular people who deliberate on these enormous decisions in secret. There are no records of what was discussed.
00:29:28
Speaker
There is no examination of or feedback on their performance. And so in a sense, they operate with unbridled freedom with no guardrails.
00:29:39
Speaker
This is where bias lives, even in those with the best of intentions. We have here a very comprehensive, thorough study that looks at every capital sentencing case in Georgia in the past decade.
00:29:58
Speaker
The authors of this study were a-theoretical. That means they did not have any specific theory. They did not have any agenda coming into their project.
00:30:09
Speaker
They were driven by the data. They were willing to entertain every criticism and to test every rival hypothesis and to use all statistical analyses they knew to look for any other explanation. So they weren't seeking to prove any hypothesis.
00:30:28
Speaker
They included 230 variables to consider and really looked at whether there were non-racial reasons for the disparities.
00:30:39
Speaker
They even ran a new analysis in the courtroom with factors that the judge on the spot identified as important for inclusion. And even then, the race effects increased.
00:30:52
Speaker
With the benefit of their considerable expertise, we have seen that the race of the victim can be an aggravating factor, just the same as the aggravating factors listed in Georgia law.
00:31:03
Speaker
Basically, the evidence we have right here shows that the punishment increases just because of the race of the victim. So in Georgia, those who kill whites have a more severe risk of being sentenced to death, holding everything else the same.
00:31:20
Speaker
We think that people act rationally with the best of intentions. We look to all of the legitimate reasons we can think of why somebody would do something that they do, why somebody would make a decision that they do.
00:31:35
Speaker
None of the rationality, none of the legitimate reasons explain what we are seeing. That means there's nothing left but the illegitimate considerations, even as painful as this must be to acknowledge.
00:31:50
Speaker
To quote Arthur Conan Doyle through Sherlock Holmes, when you have eliminated all which is impossible, then whatever remains, however improbable, must be the truth.
00:32:02
Speaker
Our evidence demonstrates that, but with probability. Even after taking other legitimate sentencing considerations into account, if the defendant's defendant's victim happens to be white, that defendant is over four times likely to receive a death sentence.
00:32:20
Speaker
For instance, 17 defendants in Fulton County were alleged to have killed or have been involved in killings of police officers. And of these, seven were during armed robberies or other serious felonies.
00:32:32
Speaker
And then two ended up with sentencing in front of a jury. And of those two, one killed a black police officer and received a life sentence. W.M. is the only defendant who received the death sentence.
00:32:46
Speaker
This evidence shows that His offense was not the type of crime that gets the death penalty on any regular basis. But are we surprised?
00:32:58
Speaker
Is this really a fluke? No. We have a century old pattern in Georgia, which now lingers in subtle and covert racial prejudices that become visible, not in the mind of one person, but when we step back and we look at the system as a whole, we're seeing the disparity.
00:33:18
Speaker
And if there is disparity that is not due to legitimate sentencing considerations, then jura Georgia's current statute needs to be struck down. Georgia's capital punishment statutes violates the equal protection cause of the 14th amendment based on this disparate sentencing.
00:33:35
Speaker
This is literally a matter of life and death and the stakes are too high for us to not get this right. I will take any questions.
00:33:46
Speaker
just as a very unbiased justice at multiple times during that, I, in my head was like bars fire, like left half very unbiased.
00:33:57
Speaker
Sorry. That was an option
00:34:02
Speaker
why thank you, justice Graham. Yeah. Thanks. She was cooking. No questions for me. Like the Sir Arthur Conan Doyle quote, gay recognize game.
00:34:15
Speaker
Yeah. yeah
00:34:19
Speaker
Uh, me getting in touch with my nerdy side. Well, with that, um, I will yield the remainder of my time or act I'll reserve it if I, you know, how much time do I have left? Negative two seconds.
00:34:32
Speaker
Ah, dang it. Okay, fine. Be like that. i do be like that.
00:34:43
Speaker
If it's pleased the court.
00:34:48
Speaker
All right. And I'm ready when whenever you are. I've got seven minutes. Mr. Chief Justice, and may it please the court. The state of Georgia categorically denies that we have built and now operate a system that is unfair to those accused of, tried for and convicted of violent murder.
00:35:08
Speaker
A decade ago, this very court put a moratorium on capital punishment throughout the entire United States. And it was our new system in Georgia that we put in place that this court approved in order to lift that moratorium.
00:35:24
Speaker
We do two things that maximizes the fairness in our system. First, we separate the trial to determine guilt from the decision to recommend the death penalty.
00:35:35
Speaker
This means that when the jury is determining whether or not you did the crime, they focus only on that. It's not, should this person be found guilty and given the death penalty? It's, do you believe this person committed this crime beyond a reasonable doubt? And that's it.
00:35:51
Speaker
Second, we provide juries with several factors about the specific crime itself in order to determine if the death sentence is warranted. In this case, there was not one but two aggravating circumstances that sealed WM's fate, and they had nothing to do with the fact that the victim was white.
00:36:12
Speaker
Let me turn now to the study. I have grave concerns about the validity of the analysis conducted and presented. As the saying goes, there's lies, damned lies, and statistics.
00:36:26
Speaker
When it comes to the death penalty, we're not talking about a large population of data. My understanding is that this study looked at between 1,000 and 2,000 cases. Those seem like large numbers, but when it comes to to tot statistics, it's not really that many.
00:36:42
Speaker
The cases also span ah a full decade, so or about a decade. So let's keep that in mind. In order to conduct their analysis, the authors needed to categorize the cases and put them into specific buckets.
00:36:56
Speaker
So they looked at all the cases and said, any case with these qualities go into this bucket, and any case any case with these other qualities goes into this other bucket. But these crimes are not so easily categorized.
00:37:08
Speaker
There's just so many tiny little differences between cases. Who's to say that the way cases were categorized in the study was the right way? Could some tweaking of the classification lead to different results?
00:37:21
Speaker
Ultimately, the petitioner's argument comes down to this. Don't look at whether or not WM deserves capital punishment for their specific crime and their specific victim.
00:37:32
Speaker
Instead, judge them by what may or may not have happened in other cases as far as sentencing, in other courts, and with other prosecutors. Allow me to remind you of the specifics of this case.
00:37:46
Speaker
W.M. committed a crime when he stole the pearl-handled pistol earlier in the day. He then joined three co-conspirators in an armed robbery, which included tying people up, essentially taking them hostage.
00:38:00
Speaker
When an officer arrived, W.M. shot that police officer in the face. One of WM's accomplices acomplices yeah complices but of wm's accomplices identified him as the culprit.
00:38:15
Speaker
During the hearing about his sentence, there were not one but two aggravating circumstances, while WM presented no, zero mitigating circumstances.
00:38:27
Speaker
This was a heinous crime. The system got it right with WM. And ultimately, that's the point. Looking at the case from a systemic perspective requires you to smooth out the details and the edges just to get them to fit together.
00:38:43
Speaker
But those details matter. Each case is tried and judged on its own and in relation to its own facts. And now it is our contention that if there is any constitutional concern here, the petitioner needs to show that the individuals who tried them, the judge that oversaw the case, or the jury that convicted them, acted with intention and malice.
00:39:10
Speaker
The study is interesting, but it doesn't show this. And so we contend that there was no direct violation of WM's rights. In other words, nobody specifically sought to violate WM's rights.
00:39:25
Speaker
They merely saw a man who was tried, found guilty, who had two mitigating circumstances or had two aggravating circumstances,
00:39:38
Speaker
that made him eligible for the death penalty. And then the judge in that case, not in every other case that was looked at, made a decision about that case. Unless the prosecutorsece less the petitioner can show that somebody in that chain acted intentionally because the defendant was black or because the victim was white, there is no violation of WM's rights.
00:40:04
Speaker
Thank you, and I yield to questions. I guess my only question is precedence. You know, if youre if we're not able to compare cases, i mean, then what's and where's the precedent where does precedence lie um when it comes to like bringing um ah you know a decision forward?
00:40:26
Speaker
If you're not looking at other cases and saying, well, this happened here, this happened here, right? So how does precedence kind of play into your argument? I should say that in Georgia, there actually is a system where the judicial system looks at previous rulings in order to compare them. And it is, ah according to their analysis, there is no ah racial component to the sentencing.
00:40:51
Speaker
It is this specific study that is saying that. So there is, I i i feel bad for you as justices because what what the petitioner is asking you to do is say, no, no, my analysis is the right one.
00:41:08
Speaker
And it's the contention of the state of Georgia that their analysis is an analysis, not the analysis. Gotcha. I'd reserve my time, but I have no place to go with it.
00:41:24
Speaker
You only have 10 seconds anyhow. Well, thank you very much, Justices. I trust you will do the right thing. That didn't feel good to say.
00:41:37
Speaker
Well, clerk mode activated. luck, guys. Have fun with this deliberation.
Deliberation on Racial Bias in Sentencing
00:41:45
Speaker
I'm going to throw some i'm gonna throw some some thoughts out just into the ether here.
00:41:49
Speaker
Thought number one, i am against the death penalty, just in general. ah just not Morally, yeah. Yeah, just but just morally. It's not my thing.
00:42:01
Speaker
I always and probably going to lean towards figuring out how to get away from the death penalty where possible.
00:42:13
Speaker
um I think it's interesting that it seemed that Nikki, her arguments were based off of system and Jarrett's arguments were based off of specifics.
00:42:23
Speaker
I think that my initial just kind of lean is that somebody, an argument made about trying to focus you on specifics when the question seems to be about system is an argument that can be, if applied correctly, can be used kind of indefinitely to ah really like you know to do the wrong thing, to make the wrong decision big picture. I think that um i think that our question, as I understand it, is a question of system, um not really the specifics of the case. I think that we're all kind of on the same page of the specifics of the case.
00:43:04
Speaker
My only other thought is that Jarrett made a lot of mention of the idea of intentionally versus unintentionally. Really, he just made mention, I think, of the word intentionally and using intentionality when trying to ascertain if people, if the race component matters.
00:43:22
Speaker
And I think that the my understanding of the and of the nature of bias is that it's not intentional and that intentional doesn't really matter. um So, I don't know, just thank you for allowing me the time, other justices, to kind of talk my way here. I think that I am probably leaning towards Nikki's line of thinking.
00:43:45
Speaker
um I don't know that, again, like, I don't know if there will be a great case for for this to be applied to. I do think that we have to look at it big picture, but I do think that big picture, the idea that there is racial bias and there being data to support that and application of the death penalty is not good and needs to be fixed.
00:44:11
Speaker
And as Nikki said, it is life and death. What do y'all think?
00:44:17
Speaker
No, I, I pretty much agree with the vast majority of what you said. you know specifically the whole unconscious bias part of of the statement.
00:44:32
Speaker
That was something that I also noted from what was said. Just the intentionality isn't a necessary part of this when we're talking about breaking system issues.
00:44:46
Speaker
I do wonder... If the, you know, if things were categorized differently, was a statement that that was also said, if things were categorized differently within the study, could there be other findings that could, you know, paint different pictures for us?
00:45:02
Speaker
But fortunately we don't have that in front of us. So all we can really do is kind of go off of, you know, the cherry picked things that we found um in comments and things like that.
00:45:14
Speaker
Something that was interesting to me was the whole four times more likely to be you know sentenced to death if the victim was white. I thought that was that was pretty pertinent.
00:45:28
Speaker
And if we're clarifying, I'm totally for the death penalty, just not in this specific case. That was awesome. I was trying to figure out the vast majority. I was like, what's the minority that he's not saying? It's the death penalty. Got it. Yeah, that was it. That was it. Perfect.
00:45:48
Speaker
That's good. So, yeah, I think you guys are saying the same thing I was thinking um with intentionality, right? And so I'm i'm i'm always thinking, okay, the specifics of I'm always thinking about the specifics of the case, whether or not...
00:46:02
Speaker
you know, the system is broken or, you know, there's, you know, we found, you know, racial racial bias in all of these cases, this case, we should give fairness to where fairness is due of this specific question of whether or not this evidence is, you know, violating, you know, WM's eighth and 14th amendment rights. So I'm always thinking about the case itself, but in this case,
00:46:26
Speaker
ah the intention of the sentencing itself, I think, plays a role. So yes, it is a system-wide issue, but and this system-wide issue is specifically, I think, impacting the the eighth amendment I'm not sure about the 14th Amendment, but the Eighth Amendment, I think, um potentially, that there's a good case here that, you know, the fact that the system is broken, you have racial bias based on the facts, based on all of these other cases.
00:46:57
Speaker
um We have to set a precedence, right? And so I think, you know, long story short, I think the eighth, eighth amendment specifically, you know, this is a cruel and unusual punishment on top of, you know, the life sentence that he would have otherwise gotten potentially if there was no racial bias component.
00:47:15
Speaker
Um, so I think, yeah, I mean, that's kind of where i where I've fallen. Um, yeah. I mean, and another thing, I think that,
00:47:27
Speaker
we're going to If we are going to have the death penalty, I think that it is our responsibility to make sure that it meted out perfectly. right I think that because it is such a it is life and death, um I think it is our responsibility to make sure that we have a system that met justice out perfectly 100% time. that i think that if there's any evidence at all that shows that the death penalty is ah being, I will say loosely being impacted by racial bias. I think I could probably use stronger terminology.
00:48:09
Speaker
I think that it is our duty to look at the system because if we are going to have death penalty, it has to be a death penalty that is never, ever, ever, ever, ever wrong.
00:48:21
Speaker
and never, you know, we're we're never sentencing so an innocent person to die. We're never doing any of that.
00:48:29
Speaker
And so if there's racial bias involved, then even if we think that WM is not innocent um and that he's guilty, which I think we're all generally on the same page or around the same page on that, you know,
00:48:49
Speaker
I think that it's still is something that we should be looking at.
00:48:55
Speaker
Yeah, i think that's ah I think that's a good point, especially, again, not trying to focus in on this specific case, but if we're using data collected from the past 10 years of you know the range of 2,000 cases within the state of Georgia, and this case specifically falls in that in that categorization of you know racial bias then leading to A, cruel unusual punishment, and B, um denying a person equal protection under the laws.
00:49:29
Speaker
In this specific case, we're using you know the statements of criminals, right, to then lead to the death of another criminal, which I think, to your point, it,
00:49:45
Speaker
You know, it muddies the the the clarity of like, all right, is is this death penalty sentencing as clear and as judicious as it possibly could be?
00:49:58
Speaker
And in this specific case, it definitely does not, especially with statistical data, which just seems void from this case.
00:50:10
Speaker
and And I have a clarifying question as well. The stakes here for WM, are the stakes death penalty versus released or death penalty versus life in prison?
00:50:23
Speaker
Life in prison. Got it. Yeah. I think that that that informs, that that almost makes it an easier conversation for me. Yeah, because justice is still going to be served whether or not the death sentence is carried out.
00:50:40
Speaker
Yeah. But I'm still kind of standing on the, yeah, the eighth amendment. I view the sentencing as cruel and unusual um because of the bias. um But I think he did go through due process. He was found guilty, but I think it took it a step further.
00:50:56
Speaker
And there's that. Yeah, it's the bias. It's almost like, ah wow, that guy is guilty. So let's send him off to some, you know, camp to be killed. do you know what i mean? Like it's, it seems cruel and unusual to me.
00:51:10
Speaker
but i So that's kind of where I'm thinking the Eighth Amendment plays a role here, but the 14th Amendment probably not. But I'm not sure how to... Really? So you don't think the whole you know equal protection under the laws thing, under the laws?
00:51:24
Speaker
It's so interesting. Yeah, because the 14th, you said that a couple of minutes, it took me a second, but the 14th actually was the one that struck me more than the 8th. I'm not saying that I disagree. I'm just, when I read the through the both of them, just kind of as a layman, as we all are, um it took me a second to...
00:51:42
Speaker
You're like, no, I think the 14th makes a little bit more sense. It's the, you know, depriving of person of life, liberty, property without the due process of law I think that when you, I don't know, it struck me first.
00:51:54
Speaker
The reason, so it, to me, he did go through due process and now he just seems to be like, it's, we're taking it a step further and throwing him through this, you know, the sentencing, which was biased.
00:52:07
Speaker
Right. And so for me, it's like, he's gone through the due process. He was found guilty. Right. And now there's like the second thing and it seems cruel and unusual to me. So that's kind of why I'm saying the 14th amendment is doing its job already.
00:52:21
Speaker
um And so to me, it's like, it's kind of off the table, but the eighth amendment, it it just, yeah, this is, this seems excessive. Right. And that's kind of why I was picking it up. Gotcha.
00:52:33
Speaker
Yeah. We, I don't know. We seem to be all in agreement one way or another, ah maybe for different reasons, ah but that's okay. um I feel like it usually ends up really bad when we're all in a game because and everything just crashes down in front of us. jump god on us i think I think we're all, it sounds like to me that the statistical evidence to all of us matters.
00:53:02
Speaker
It does matter. Yeah. Right. And we think that there, if the statistical statistical evidence matters and there, we think there is some sort of racial bias and we think that violates his rights.
00:53:14
Speaker
And so in our love, grace, and wisdom, we've decided to just sentence him to life in prison. Justice is still served. Okay. It sounds like Graham's writing the main opinion.
00:53:31
Speaker
Preston and Chris are signing on to to that opinion. Preston's caveat is, I'm not saying the death penalty is out. um mean on death I'm just saying in this particular circumstance, Georgia has to go back to the drawing board a little bit.
00:53:49
Speaker
That is accurate. I'm good with it, but in this and at the specific instance, they're wild. That's what I'm saying. It's too much. It's too much. And Chris is saying, georgia I also agree with Graham, except I disagree on the 14th Amendment, but I'm here for the 8th.
00:54:04
Speaker
Pretty much. All right. Fastest deliberation this show has ever seen. and Really? 100%. Yeah. We're all good people. don't know. don't know.
00:54:17
Speaker
Yeah, yeah there there were a lot of nuances in the case and there's a lot of like external factors. But I think if you look at it, you know, yeah, there's bias and yeah, there was, you know, yeah, okay.
00:54:29
Speaker
And it's kind of, it's actually kind of made it easier because you have two phases. Like the first phase of like, yeah, the guy was guilty. Okay. Yeah, that makes sense. Life in prison. And then it was like, no, but wait, there's more. We're going to send one to the death. I'm like, oh, seems excessive.
00:54:44
Speaker
um You know, and and yeah, I agree. Yeah, murder is not trivial, right? At the end of the day, right? You know, killing somebody is not trivial. um but an eye for an um But that's just a personal thing.
00:54:56
Speaker
But looking at the amendments specifically, um i just, yeah, but the bias and it just it just seems excessive to me. so One other thing I just wanted to quickly say, i did find Nikki's point interesting about juries and how juries don't have checks and balances or you know don't have guardrails, I think was was the terminology that she used.
00:55:19
Speaker
I think that that's an interesting point kind of thought experiment, the idea that juries are kind of the one place in the justice system where there aren't, you know, kind of clearly, I mean, there are clearly defined guardrails, but there's a lot more leeway maybe and other than in other places. I mean, that's how you get things like jury nullification, stuff like that.
00:55:44
Speaker
just find that i found i found that to be an interesting point among, you know, all the things that Nikki was saying. yeah Yeah, to hell with your argument, Jared. I haven't said one nice thing about Jared's argument. Lies, damn lies, and statistics was good.
00:56:01
Speaker
that was it was that was a good one. Grave kind grave concerns about the the study. I was like, that was having grave concerns is great. I have grave concerns that you will not let me put this man in his grave.
00:56:20
Speaker
ah Yeah, I mean, hey, we flip a coin and we argue the side that we're given, you know? Mm-hmm. Yeah. there So actually, yeah, this works. Yeah. Like there's no, okay. Yeah. Yeah. Especially for this season. um and then what I've been doing as I, you know, is like pulling little bullet points for each side.
00:56:42
Speaker
So there's at least like a starting place, yeah um, for either, of you know, and then we kind of figure out who's doing what, and then we go with our assigned side. Yeah. Peek behind the curtain.
Court Decision and Historical Context
00:56:54
Speaker
We actually work on the arguments, like the blueprint of the arguments together. And then we flip a coin as to, who is going to take which side. And then that when you get your when you get your assignment, you then go take your blueprint and develop it in your own voice.
00:57:10
Speaker
Gotcha. nice Is this a weighted coin? Just because it it always feels like you're- That was my next question. So for the first season, yeah, we were picking and for the most part, and then I was, you know, oh I like this or, oh, fuck this lady. I'm actually arguing for her. that was, I had that reaction one stance just to like make it fun. But yeah, for this season, um yeah, it was more- randomly decided and yeah there was joint sort of you know crafting ah like not refining the arguments but like like the putting getting the blueprint like jared said dimension
00:57:52
Speaker
to it is is this is this where you tell us that because we all think one thing that the united states supreme court thinks something else da da da da Of course.
00:58:04
Speaker
Criperoni. Come We would never. We would never. Anyway, Nikki, if you could please give them to so what happened. Yes. So this case was argued on October 15th, 1986 and decided ah April 22nd, 1987. This is going to take a while to get through. um So forgive me and interrupt me with questions and concerns.
00:58:29
Speaker
The majority opinion was delivered by Justice Powell. And in this opinion, SCOTUS affirmed the denial of WOM's petition. So his death sentence stands.
00:58:41
Speaker
ah That's a lot. That's a lot. It's crazy because the information that they gathered was from 1960.
00:58:51
Speaker
76 up until that point. And you feel like it was a lot. yeah That's a lot more recent than I thought. it was It was during most of the 70s was the date range of the ah the study. It's half a decade ago. that's I mean, half a century ago.
00:59:08
Speaker
you know my math. Half a decade ago. That is a lot more recent than I expected. Yeah. i that is a lot more recent than i the Isn't it always? And it's unfortunate that it is.
00:59:24
Speaker
But, you know.
00:59:27
Speaker
Yeah. 70s.
00:59:29
Speaker
So yeah, 1987, they were like, yeah. So like the the oral arguments, the record there's recordings and they're like crystal clear and everybody is talking in a more modern way. Because I've listened to some where it's like that fifty s kind of like, hey, and you see. That's awesome. no was like we're not.
00:59:46
Speaker
Yeah, it was like just a group of people talking. um Yeah. So- Okay. And I have to say, reading this opinion was wild because everyone was so in their feelings about it.
01:00:00
Speaker
So the majority opinion was that we already had a moratorium on the death penalty. So there was there was a ah brief period in um modern US history where the Supreme Court's like, no.
01:00:14
Speaker
And so nobody could do the death penalty. And they they were like, there needs to be all of these requirements of capital sentencing to make sure it's fair. And then states were like, okay, we wrote a law like this.
01:00:25
Speaker
Does this, can we do this? And the Supreme Court was like, sure. So they were like, we've already done a moratorium and we set the rules and the guardrails and the Georgia system checks off all of the boxes. You get the automatic appeal. you get the court review for prejudice. You look at the factors.
01:00:41
Speaker
You know, we're looking around at other states make sure they're doing, you know, the death penalty statutes appropriately. So we've already figured out a workable system here. And they were saying that W.M. was wiling because of the systemic view, because they said his claim implicates, quote, every actor in the Georgia Capitol sentencing process, unquote.
01:01:07
Speaker
So the state legislature that wrote the law, the prosecutor, the jury, the appeals process, et cetera. And they were like, look, just people have discretion. And just because people have discretion and decisions are made at every step doesn't mean that the process is unconstitutional.
01:01:24
Speaker
Discretion is really important to the criminal justice system. So the legislatures need that latitude to decide their choice of criminal laws and penalties. The prosecutors need to be able to decide what charges to bring and what sentences that they want to go after.
01:01:37
Speaker
The jury should be allowed to decide on you know guilt and and whether the death penalty should be imposed. And you know a judge can take a look at it later and overturn it. so So there's so many reasons that a case can have an outcome.
01:01:53
Speaker
So they were like, yeah, he's claiming that there's this violation of the Equal Protection Clause ah just by having this law, despite allegedly discriminatory application.
01:02:05
Speaker
But the discriminatory purpose kind of language around, you know, the discrimination and implies intentionality. So WM actually has to prove purposeful discrimination and that the purposeful discrimination had a discriminatory effect on him.
01:02:24
Speaker
That sounds like a lot of words just to say, I don't want to do more work. Oh, God. And I get that. but that was That was my reading. Yep, exactly. Go ahead. No, no, that's that's that's all it sounds like. Oh, yeah. Yeah.
01:02:36
Speaker
Yeah. It's like reverse of what we were arguing. It was like us saying, ah you know, that there was intention and they're saying, nah, no, you have to, you have to prove there has to be, the legislature has to be like, Hey, all these black dudes, including WM.
01:02:54
Speaker
And then the prosecutor has to be like, fuck WM, WM personally. And then the jury has to be like, yeah, we don't like him because of his race. And then that would, you know, to be fair,
01:03:06
Speaker
In 1986, I feel like unconscious bias was not a thing that anybody was going to get behind in Atlanta, Georgia. Especially not for black people. Especially not for black people.
01:03:20
Speaker
Yeah. So they were like, you're coming all in here with your general study, just making blanket statements, calling everybody trash. Yeah.
01:03:35
Speaker
No, ah the stats show only a likelihood that a particular factor entered into some of the decisions. And they're just like, the study has to specifically prove. And we can't make an inference about a specific case from general statistics. you know he you know like Really, the record shows that he committed an act that can legally be punished by death.
01:03:59
Speaker
And there you go. That's why he got sentenced to death. And they said this was amazing, quote, at most, the Baldus study indicates a discrepancy that appears to correlate with race, unquote.
01:04:12
Speaker
Perfect. Yeah, that's pretty funny. It's just like, George is like, yeah, we're not racist. All right, let's go hang this black guy. They're just like, it only looks like that, really.
01:04:24
Speaker
They're out here calling this man woke. They're like, you thought that this would matter? No. No. And they're like, there's risk of racial or other prejudice, but quote, the question is, at what point that risk becomes constitutionally unacceptable, unquote.
01:04:44
Speaker
They're like, we've done all of this work already to eliminate racial prejudice in the legal system. And apparent disparities in sentencing are an inevitable part of our criminal justice system.
01:04:57
Speaker
There's weakness and, quote, potential for misuse, unquote, in any criminal system. There's no perfect way to decide which cases should result to the death penalty. So, you know, there it's it's not a constitutionally significant risk. We're over here talking about statistically significant.
01:05:13
Speaker
They say this is direct quote does not demonstrate a constitutionally significant risk of racial bias. We're talking about the constitution of the United States. Just to be clear.
01:05:25
Speaker
Famously, famously unbiased.
01:05:32
Speaker
And there were two final points to just as like the dollop of whipped cream on this pie. First of all, they point out, if you take this claim seriously and carry it out to its logical conclusion, it, quote, throws into serious question the principles that underlie our entire criminal justice system.
01:05:52
Speaker
So bias. Okay, cool. So oh they're like, we would have to throw all of this out and start over. um that And so they're like, if we accept this claim, there's going to be all sorts of others focused on all kinds of other things.
01:06:05
Speaker
And then they talked about how there's studies that show racial disparities in the length of prison sentences, which there are. And then they were like, you could talk about membership in other minority groups.
01:06:15
Speaker
And since the U.S. s has a lot of minoritized groups, there's lots of examples of prior discrimination. Or you can talk to gender. And then they made a reference to psychological research showing that there are sentencing disparities by gender.
01:06:26
Speaker
And then they were like, this could apply to disparities correlating with the race or sex of others in the legal system, such as defense lawyers or judges. Once again, reference to psychological literature that kind of covers this.
01:06:38
Speaker
Or to any arbitrary variable, such as the defendant's facial characteristics, attractiveness of the defendant or the victim. By the way, psychological research indicates that these actually can influence jury decisions.
01:06:51
Speaker
Second, they're like, the legislature is the best... party to like address this. The court doesn't have the responsibility or the right to determine what punishment is is appropriate for particular crimes.
01:07:03
Speaker
They're like, nah, we're just here on a case by case basis to look at whether these laws are in line with the constitution. So like, but like Georgia had a whole process and they followed that whole process. So like, we're good here. I'm sorry. I i was so yeah i i know I normally stay quiet during this part, but this is, that's such an, it's just a bonkers statement.
01:07:23
Speaker
that the judiciary doesn't have the, oh, my brain hurts. like if it's all it's Like, like and no, no, we can't comment on this. I mean, sure. We could tell you whether or not the results of the judicial system, you know, comports with our understanding of the constitution, but like, nah, dog, not this time. Almost got us.
01:07:48
Speaker
You almost got us. Also, correct me if I'm wrong, but didn't they use the whole logical fallacy of slippery slope to say we can't do this? like They're just like, oh, this kid opened the floodgates to so many other things. so we can't we can't do this or else we'd have to fix the whole system.
01:08:06
Speaker
We can't have that. Not an hour watch. So that was the opinion. Of course it was. like What was the ah the breakdown of justices?
01:08:19
Speaker
Was this a five to four or six to three? Yeah, it was it was a highly divided court because once again, there were like a lot of feel like there was the main opinion and then other justices were like calling bullshit.
01:08:32
Speaker
Oh. oh Five to four. Five to four, yeah. Oh, wow. that' ah Oh, yeah. so And the dissents were like, there was one that was just bars.
01:08:44
Speaker
So, uh, let's see, justice Brennan did a dissent that was joined by some others. And he had a lot to say. He was like, he was like, first of all, the death penalty is cruel and unusual punishment period.
01:08:57
Speaker
Talk that shit. said he listen hard He was like, but it's unconstitutional. I would have vacated the decision on that basis alone. And then he goes into like, there's racial disparity. Like, and he's like, the reality is that it's impossible to eliminate arbitrariness.
01:09:14
Speaker
So we should just abandon the death penalty altogether. And, you know, and he's like, he's talking about how the court had previously held that there needs to, you know, if there's a substantial risk that the punishment will be arbitrary and capricious, that's when the court needs to step in and like,
01:09:32
Speaker
put things right. And he was like, guys, like, this is the risk. We have it. The risk is here. It's in the room with us. Like, it doesn't matter whether it's intentional or not.
01:09:43
Speaker
Like, this is a problem. And he was like, we have stats. And then he does a really, really deep dive into the study, like really deep dive. But he's basically like, quote, relentlessly documents the risk.
01:09:58
Speaker
Like, he's like, there's so much in here. There's so many numbers. It's better than chance. This risk is really serious because this is a death sentence we're looking at. And then he goes into a deep dive into Georgia's history and like,
01:10:12
Speaker
just speaks at length about Georgia's history of racial discrimination. And he's like, guys, we have had to step in and invalidate parts of Georgia's Capitol sentencing three times in the past 15 years.
01:10:26
Speaker
Why do they just got it now? What is this? We had to stop racial discrimination here before. And he was like, Look, as a government, we've had three constitutional amendments.
01:10:36
Speaker
We've had all these laws specifically for racism. And the fact that we have to keep coming back to this mean means that this is a persistent problem. So he's like, what are y'all doing? He's like losing his mind. He's like ripping his hair.
01:10:49
Speaker
He's like, kind he's like, guys, what are you doing? Brennan is the meme of Charlie Day from It's Always Sunny. ah so That's what I was picturing. The cork board.
01:11:01
Speaker
yeah And he's just like, if we're not going to stop the legislature from doing something wrong, then like, what are we here for? He's like, that's our whole, that's our whole point.
01:11:12
Speaker
And, you know, like, look, in criminal cases, the people who are deserving of protection are the people that, that society hates, right? Criminals. Those are the least sympathetic people.
01:11:26
Speaker
And so as a society, we need to protect their rights and really need take care and really take care. And defendants facing the death penalty are obviously the worst of the worst.
01:11:38
Speaker
So we we really need to do our job and really scrutinize the death penalty here. So that was what he said. There were so many dissents. It's like so much to get through. So I'm going to just like pause.
01:11:51
Speaker
I don't know if anybody wants to wants to add to that. Yeah, no, that's intense. Yeah. He was, oh, it was, there was, everybody was, was intense. Justice Blackmun wrote a whole thing. He was like, I'm disappointed. He just wrote that straight out.
01:12:09
Speaker
And he was like, system quote, systemic and substantial disparities and penalties for homicides. um And he's like, the only question is at what point is this disparity constitutionally unacceptable?
01:12:21
Speaker
And he's like, we can't decide that it's unconstitutional just for being a de facto characteristic of the system. He was like, Justice Brennan told us all about Georgia's history. like We have enough here to conclude that race entered into this process. So like we need to dig into this. like we need to Even if you don't accept the one study, we all need to sit down and like have the state like really kind of address And- and And he was like, you guys are just trying to like get away from work. He took to task their like whole issue of like, look, if we do it for this one guy, then like everybody. And he's like...
01:13:01
Speaker
That's what we should be doing. And if we do that and we find stuff, then we make the system better. But if we dig in and we don't find any discrimination, cool, everybody agrees that the system has integrity. But like this whole thing where we kind of find indication and then we're just like, yeah this is, you know, we're not going to do anything.
01:13:23
Speaker
He's like, you know, this is death penalty cases. It's not too high a price to pay to really kind of make sure we have like a sparkling system. So I'm reading this just like it was it was everything was like super, super long. So um this is like a super concentrated version.
01:13:41
Speaker
That's always been my thing with the death penalty. And, you know. It's the, like, I can get myself into the headspace where I think that somebody who has committed something so atrocious, but the person with the six aggravating factors, if you will, I can put, I can i can get there on like, hey, maybe this person, well maybe we got to get them out the paint.
01:14:00
Speaker
Like, I got, i I can get myself there. What I can understand is the idea that everybody involved is not committed to making, to your point, that system pristine.
01:14:11
Speaker
And the idea that like, who does it serve to not have a flawless system, a flawless death penalty system, a capital punishment system? I i find it to be One of, I mean, there's a lot of things that have disappointed me, so I won't say it's the most disappointing thing.
01:14:29
Speaker
i I'm not even sure it makes the top 10, respectfully. But I just, I do find it so disappointing that, you know, everybody's not chomping at the bit to fix this.
01:14:44
Speaker
And, you know, seeing if there is some sort of, if there' if there's any kind of correlation, cause anything at all, you know, the idea that justices would be like, you know, we see it's happening.
01:14:55
Speaker
It's probably not a big deal. Like, like, even if it is a big deal, I don't know if we're going to do anything about it. I mean, we're only SCOTUS. Like we, well, what can we do? Like that bothers me a lot. Yeah. The whole like, who are we to tell the legislature they can't do a thing?
01:15:10
Speaker
And then the dissent was like, we're literally SCOTUS. That's our job. The vacillation of the Supreme court I have found and and doing the show and over the years, just reading opinions between the,
01:15:22
Speaker
We are the most powerful, powerless people that have ever existed who wield an awesome responsibility on occasion when we choose. Like one day they're just like, we are the most powerful people in the land. And the next day they're just like, oh man, I don't know. Are we allowed to order coffee?
01:15:42
Speaker
Is that a thing we can do? And it's just like, oh my God, pick a lane.
01:15:48
Speaker
it's it's it's you know It's the idea that you know Lifetime appointments to the highest court Is supposed to make you above politics It's supposed to make you above the fray Or at least that's how I understand it And it feels like these people take that just a little bit too far.
01:16:03
Speaker
These people being some of um our SCOTUS just like, like above the fray doesn't mean totally uninvolved in the fray above the frame means being able to look down and make decisions from an unbiased perspective. And I just, it's just so disappointing that the, the idea that there's inaction, it just, it grinds my gears.
01:16:25
Speaker
That's what grinds my gears, Lois. um ah I'll be honest with you, inaction is the death to any organization. ah That's, yeah, and I see it every day.
01:16:38
Speaker
Every day. yeah Someone works in corporate America.
01:16:46
Speaker
It kills me, because like when I hear a leader, no matter who it is, say, the decision is that we're not going to make a decision for the next six months, I'm like, so you're accepting that this is not working and that that's okay. that's like That's like saying, yeah, cool.
01:17:06
Speaker
Yeah, we'll just sentence people to death. It's not really working, but that's fine. You know what i mean? Like, that's it's terrible. That's a good, yeah, there's a great line from Band of Brothers where it's like, he wasn't a bad leader because he made bad decisions. He was a bad leader because he made no decisions.
01:17:23
Speaker
Right. Yeah. Right.
01:17:28
Speaker
So, ah yeah, everybody. Oh, there there was a third dissent, but it was it was just more of the like, you know, ah Justice Stevens was like, death is different. You know, where it's it's very serious. It's high stakes. And we it's really important that we make these decisions based on reason and that they're subject to scrutiny.
01:17:45
Speaker
And here we have a claim and evidence that there's, you know, distortion by racial prejudice. So we got to we got to handle this. And he was like, the majority opinion, majority opinion looks like it's motivated by fear of destroying the capital punishment system in Georgia.
01:18:02
Speaker
But like, that's the better choice. compared with racial discrimination. And, you know, and he was like, hey, the study also shows there's a slice of very serious crimes where juries like are ever like all the juries are like kind of consistently like, hey, fuck that guy, put him to death.
01:18:19
Speaker
And he was like, so just narrow the death penalty the to those to those cases where everybody just agrees immediately. And then we don't have to deal with arbitrariness and discrimination. We would just why not just do that?
01:18:32
Speaker
We should have just, you know, reversed and like, and done more to dig into like the death penalty and for this specific guy and whether it should be set aside, you know, and talking about the study more, but no and So yeah, there were a lot of like, all the justices were like upset. There were just a lot of dissents and they were very long. and We know if there were any other, sorry.
01:18:59
Speaker
Rock, paper, scissors? No, no, you got it. You got it. um i was not I was just going to say about the the um you know that statistical analysis of the study that they did.
01:19:12
Speaker
And I wonder how many cases had juries you know flirt with the idea of a death sentence and then the judge had to come in and be like, no, that's too much. like Let's bring that in Or if that happens often?
01:19:29
Speaker
That's a good question. I think it very rarely happens, but I don't have any sort of immediate like studies or research to back that up. I think usually once the jury makes a decision, the judge kind of goes along with it, but I'm not 100% sure.
01:19:42
Speaker
that Frustrating. i usually I usually have a bunch of so what's that I try to kind of throw in at the end, my little historical perspective, put my little historian hat on.
01:19:57
Speaker
ah But all through this episode, from beginning to end, you have all regularly nailed all of my points.
01:20:08
Speaker
Oh, do you want to do like the postscript about all the other stuff that Baldus did beyond the study? um This was my next question is, was there any follow-up study? what What happened after this? did did they It was just like, oh, congratulations, Baldus et al.
01:20:23
Speaker
And... a on to the next. Like what happened? So ah my deep dive was on the studies specifically for this case.
01:20:35
Speaker
So I don't have a ton of information and maybe Nikki, you do, and you can fill in the gaps. I don't have a ton of information about post except to say that my, aunt my belief that they went on to, to do this for, if not all the other States for a lot of the other States and found a lot of the same things.
01:20:56
Speaker
I wish I could be more, i wish I had more specifics, but I was ah very focused on the particulars of of this case and just trying to find the studies.
01:21:09
Speaker
But I will say that there are um many papers published by the authors of these studies together
Reflections on Systemic Racism and Justice
01:21:19
Speaker
and separately. And one thing that is very interesting about this is The kind of analysis that they were doing, I believe one of the things that they but they did was, again, for math nerds, was a logarithmic regression.
01:21:38
Speaker
Anyone who's ever taken a stats class, who's ever had a professor who hated them, probably had to do like a linear regression by hand. it is so much calculating. logarithmic regression.
01:21:51
Speaker
regression, also quite a bit of calculation. And with these this many variables, just a ton of work. What's really interesting is that part of their, like when we put this in its historical place, they used computers to crunch all of these numbers.
01:22:12
Speaker
These were analyses that 20 years beforehand probably couldn't even have been done. So not only were they, like today, anyone who's you know in the stats world or whatever, you know you have like SBSS and SAS and R, Python, all of these technologies that make stats like really easy to calculate, you have these huge data sets that you can crunch in no time.
01:22:46
Speaker
But back in the day, it was all by hand. And a lot of these methodologies had to be developed and defended. And some of the authors of these papers, like you'd think like, oh, this is a very law-specific discipline.
01:22:59
Speaker
But my understanding is ah that Dr. Woodworth was a he worked in applied mathematics or or um quantitative mathematics right so this is this isn't just about social justice maybe a social like criminal this wasn't just about criminal justice and the law they were actually innovating mathematically computationally and i mean that like with computers which was which is kind of mind-blowing to me because this case took place during my lifetime i mean was a child but like
01:23:32
Speaker
During my lifetime, things that I learned in grad school that like I could do at Excel in 10 minutes, they had to invent this.
01:23:43
Speaker
This is not old. And that that kind of blows my mind. So that's a pretty interesting thing historically. The other so what that was kind of weighing on my mind that I was chatting with Nikki about before we came to record this episode was...
01:23:58
Speaker
When we talk about, you all mentioned it, which I was glad that that you all kind of hit this point. It's just like, whoa, whoa, whoa, whoa like Unconscious bias in a system is insidious because that means that it's the system that's broken, not the people in the system.
01:24:16
Speaker
you're not You can't replace the people if if the system is going to make those people end up with the same results. It's the system that has to go. And my understanding, and I am not an expert in this, so please correct me if I'm wrong, but my understanding is to a large degree, like the argument that you're making, right, is like, whoa, whoa, whoa, there's there's unconscious bias here. We're not saying that any particular human being was like, I'm going to get that guy.
01:24:41
Speaker
We're just saying that the system is set up in a way that that tends in a particular direction, not because anybody meant it to, but because it just it just drives them there for whatever reason.
01:24:52
Speaker
That is the foundation of critical race theory, as I understand it, right? It's like, we're not we're not saying that you're a racist. We're saying you're a cog in a machine where your output combined with the output of other people has a racist effect.
01:25:10
Speaker
Preach Mandela. And so when everybody kind of gets like, oh, they're teaching critical race theory, it's like, I mean, teach it or don't teach it, but like the system is broken, right? And if you just don't care about the name, then call it unconscious bias or call it a broken system or call it Blah-bidi-blah. I don't care.
01:25:30
Speaker
but But that's – this this is seems to me – this study is just like, well, here's critical race theory explained in math.
01:25:43
Speaker
i don't know. i and And also 30 40 years ago. right Right. We probably would have been caught sooner if we had access to computational tools sooner.
01:26:00
Speaker
But, yeah. I think the 30 and 40 years ago, I mean, it is at the same time, like, it was 30 and 40 years ago. Like, imagine how it is today. But it's also like, that was just not that long ago. Like, in the grand scheme of things, 30, 40 years ago is not long at all. It is a...
01:26:19
Speaker
A millionth of a second, you know? and So. Michael Jackson was like putting out hits actively. Hits. I tell you. Bangers.
01:26:30
Speaker
The Soviet Union was still, still existed. and Yeah. So Jared, I feel like, again, I'm not using this as an excuse, but I feel like the issue with the whole, you know, cog in a machine line of line of thinking is that it then requires each individual working in that machine to then reevaluate their place in the system, the interactions that they have, and, you know, better make themselves better because of, like, you know, throwing throwing those interactions under a microscope. And I just feel like so many people just don't want to
01:27:13
Speaker
do that or take the time for that. Put in the work. Yeah. Yeah. It's a lot of work and it's really hard and it's really uncomfortable and you have to think about things in a, a way that's, you know, uncomfortable and also that's, that makes you feel bad.
01:27:32
Speaker
Honestly. And be empathetic. Yeah. Like the reality is that like justice is, is hard and it's a work and,
01:27:44
Speaker
The part that's hard about it, i from this is just my opinion, is there is an emotional response to justice and a detached sort of trying to be emotionless version of justice.
01:28:00
Speaker
And it's very easy, I think, to feel a particular way when you hear a judgment.
01:28:10
Speaker
And I think it's fine for the average citizen on the street to have a visceral reaction to to something, right? Like, oh, I heard this person was found guilty or innocent, and I love or hate that decision, whatever that may be.
01:28:26
Speaker
But when you're the person on trial, you want that system to be devoid of emotion, impartial, And I think I would prefer a system that is trying very hard to remove the emotion side of it too.
01:28:43
Speaker
And ah remember that the justice system, what it does it part of what it does is it provides justice to the victims or to the victims' families.
01:28:58
Speaker
So it it protects the victims and the and the victims' families. But the justice system also protects the perpetrator to some level. that all of up Because otherwise we would just stone people.
01:29:13
Speaker
Or just take people out and we would just stone them. so so yeah right So there's a conceit that that justice means... you know, fairness and, and a, uh, sort of ruthless application of, you know, a certain level of emotionless, uh, systems.
Defining Justice and Supreme Court Criticism
01:29:33
Speaker
And, but you can't take the, he the system. I mean, I'm not going to turn it over to ai Like, that's a terrifying prospect. So like, you need the people, like, I don't know. It's, and I guess my i my, my original point stands like justice is hard. And then you get the fact that like, know,
01:29:52
Speaker
We can't even agree on what justice is. Right. So anyway, I mean, my point is like justice as is hard.
01:30:03
Speaker
And I feel like the Supreme Court didn't engage with the material on this one. Yeah, agree with that. Well, it did just not enough of them. hmm.
01:30:16
Speaker
I also do would say that there's, um, there was also some misunderstanding of what as well, cause this was like, you know, really like highly theoretical, like advanced statistical modeling. And there was, I think it was a footnote where, um, they talked about a lower courts interpretation of one of the, uh, the numbers that got calculated, like what it means in terms of So it's putting out numbers in terms of the percentage of the variance. So the percentage of change in one variable that is accounted for by another.
01:30:51
Speaker
And there was an interpretation that was flat out wrong. They were like, oh, this means that less than you know it's it's less than chance that race impacted, you know, the system.
Misinterpretation of Racial Data
01:31:06
Speaker
And I was like, no, that number means that in a brace impacted like up to 48% of the decision-making, which is a huge proportion, like from a social science perspective, that's a big freaking proportion. That is a big number. That is, that is concerning.
01:31:26
Speaker
But the lower court was like, yeah you know, it's below chance. um And I'm like, that's not how any of this works. We're not talking about betting odds here. It's not about flipping a coin necessarily.
01:31:36
Speaker
It's saying, yeah ah it's not the problem. I think it was like 0.48 was the R square. Yeah, it was 0.48. And you think like, oh, that means that there's less than half of a chance that this is the result of racial discrimination.
01:31:51
Speaker
bias and it's like no this isn't about flipping a coin and saying it comes up heads 48 of the time this is saying the thing happens what percentage of the thing is caused by this versus that and it's like well 40 48 of the decision was because of race 52 was yeah multiple other things but like almost half of it is this Yeah, they were like, it's it's you throw a bunch of numbers into a model and you switch out variables to see like, oh, can I predict the outcome if I have this? What about this? What about this?
01:32:29
Speaker
And when they plugged race in, it explained a lot. Mm-hmm. you know not It didn't explain everything, but when you come to you know but when you're talking about human behavior, which is just you know and then systems, which are oh bunch of humans together, <unk>re you're goingnna you're going to expect a lot of things happening for a lot of different reasons, like and and you know the amount of variance that you would expect ah to account for any one outcome, that would drop.
01:32:58
Speaker
But they played around, you know, they they put race into the model and were like, oh, that explained oh that explains that. That explains that. Interesting. and this was And this was a model where they were basically looking to exclude it you know, like looking for any other reason, covariate, whatever. And it actually is very similar to, there was a study that was put out by Harvard Law School in 2020. And this was specific to Massachusetts, where they were basically like, hey, we have this model, like to kind of look at the, you know, the impact of all of these different things on sentencing, the severity of the crime, the this, the this, the this.
01:33:37
Speaker
And we tried every single variable that And it didn't explain the racial disparity. So at this point, we are left with nothing but race to explain like these differences in sentencing race and why defendants are color of color are locked up at such higher rates than white defendants.
01:33:59
Speaker
um It was a very interesting study. it is It's publicly available, but they were like, yeah, we we literally looked for every single other explanation and couldn't find one. Another thing quickly, Jarrett, you mentioned um the idea of justice being emotional versus emotionless, kind of depending on the circumstance.
01:34:21
Speaker
And I do think that when we, it's interesting and I'm, I wonder how much people would admit to this, you know, it points down the line. I think that a lot of the time,
01:34:34
Speaker
when we start getting around subjects that are critical race theory or critical race theory adjacent, I think that there is an emotional response sometimes from those who, for whatever reason, feel like they're being attacked by those, by that kind of research, by those things. And so I, i would be curious if, um,
01:34:55
Speaker
you know, for the people that are on the side of the the the five, if you will, if there was a level of feeling, it maybe be not, it's you know, something obvious or overt, but rejecting the premise of the study because there was an element of like,
01:35:15
Speaker
Well, if we if we admit that this is something that we have to do something about and we have to go after the whole system, it is kind of a reflection on how we've done business in this country for the last however many years.
01:35:26
Speaker
and and i And I think that until until things until that kind of thought process changes, I think that we're going to run across a lot of issues that have similar results.
01:35:40
Speaker
Yeah. I don't know if this is to make you feel better, but this does come from Wikipedia, so grain of salt. But according to Wikipedia, Justice Lewis Powell, who wrote the majority opinion here, was asked by his but biographer if he wanted to change his vote in any of the cases that he had worked on.
01:36:03
Speaker
And his response was, quote, yes, McCleskey v. Kemp. Wow. Damn.
Regret and Reflections on Past Decisions
01:36:10
Speaker
That does make me feel better, actually. That's a great nugget.
01:36:14
Speaker
We could have been living in a much better timeline, but that happened.
01:36:22
Speaker
That could be that domino, right? You never know like what but domino needs to be pushed first. Powell could have been the the flap of a butterfly's wing.
01:36:35
Speaker
Okay. Well... The Chris court has decided to overturn McCluskey's sentence. Unfortunately, reality did not comport with that decision.
01:36:49
Speaker
Overruled. That's his tradition.
01:36:55
Speaker
But with that, I would like to say thank you to you all for dealing with ah you know me and Jared and our relentless, i don't even know, trolling?
01:37:06
Speaker
but inflicting the Supreme Court on you. You guys are really good sports about it. And once again, we are here with ah Justice Preston.
01:37:17
Speaker
yo. Justice Graham. I'm just now realizing that y'all been recording this whole thing. This is wild. that Wow.
01:37:28
Speaker
That's how this works. yeah I've spoken. And Chief Justice Chris. Yeah, I mean, to be on the record here, I didn't realize I was going to be Chief Justice. I i appreciate the promotion. Thanks.
01:37:45
Speaker
I don't think I'm qualified, but I'll take it anyway. ah it was You did just fine. Your powdered wig will arrive in the mail.
01:37:57
Speaker
i just i thought thought that was my red fedora back there. and so Oh, God. no that's it's out that is that's district court energy, Chris. You get that out of here. accept Yes, exactly. We're done.
01:38:13
Speaker
We're done. we're totally, we're done. We're bummed. And thank you everyone so much. Thanks everybody. Take care.
01:38:26
Speaker
Thanks y'all.
01:38:29
Speaker
That's it for this episode.
Closing Remarks and Audience Engagement
01:38:31
Speaker
But before we go, thanks again to my co-host and to our justices. The music in this episode was written by Studio Columna and Toby Smith and provided by Pixabay.
01:38:42
Speaker
Research was done by me. Audio mixing and producing was done by Jarrett. Thanks for listening. Please subscribe, rate and comment so other people can find us.
01:38:53
Speaker
For complete episode information, including references, please check out our website at relitigated.com. You can also catch us on YouTube, Instagram, Facebook, Threads, and Blue Sky.
01:39:05
Speaker
Please help us spread the word. Until next time, I'm Nikki, and this has been Relitigated. Bye.