671 F.2d 858 (5th Cir. 1982), 81-7043, Smith v. Balkcom

Docket Nº:81-7043.
Citation:671 F.2d 858
Party Name:John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant, v. Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee.
Case Date:March 29, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 858

671 F.2d 858 (5th Cir. 1982)

John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant,

v.

Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee.

No. 81-7043.

Unit B [*]

United States Court of Appeals, Fifth Circuit

March 29, 1982

Page 859

Robert C. Glustrom, Decatur, Ga., Anthony G. Amsterdam, Stanford, Cal., John Charles Boyer, New York City, Samuel R. Gross, New Haven, Conn., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., State of Ga., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

ON PETITIONS FOR REHEARING

Before HILL, Circuit Judge, SMITH [**], Judge, and HENDERSON, Circuit Judge.

PER CURIAM:

We hereby modify the panel opinion, 660 F.2d 573 (5th Cir. 1981), to delete the paragraph appearing on page 585 and beginning "The equal protection aspect ..." and add in lieu thereof the following:

Smith further attacks the constitutionality of the application of Georgia's death penalty on equal protection grounds. Smith has proffered evidence undertaking to show that "racial factors (are) evident in Georgia capital sentencing patterns." Brief for Petitioner-Appellant at 40. This evidence falls short, however, of establishing an equal protection violation.

In some instances, circumstantial or statistical evidence of racially disproportionate impact may be so strong that the results permit no other inference but that they are the product of a racially discriminatory intent or purpose. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (97 S.Ct. 555, 266, 50 L.Ed.2d 450) (1977); see Furman v. Georgia, 408 U.S. 238, 389 n.12 (92 S.Ct. 2726, 2804 n.12, 33 L.Ed.2d 346) (1972) (Burger, C. J., dissenting). Smith's evidence, however, does not present such a case. The raw data selected for the statistical study bear no more than a highly attenuated relationship to capital cases actually presented for trial in the state. The leap from that data to the conclusion of discriminatory intent or purpose leaves untouched countless racially neutral variables. 33 The statistics are not inconsistent with the proper application of the structured capital punishment law of the state found constitutional in Gregg v. Georgia, 428 U.S. 153 (96 S.Ct. 2909, 49 L.Ed.2d 859) (1976). Here,

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