Smith v. Balkcom
| Decision Date | 29 March 1982 |
| Docket Number | No. 81-7043,81-7043 |
| Citation | 671 F.2d 858 |
| Parties | John Eldon SMITH, or Anthony Isalldo Machetti, Petitioner-Appellant, v. Charles BALKCOM, Warden, Georgia State Prison, Respondent-Appellee. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
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.
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 the proffered evidence would not have been of sufficient probative value to have required response and no hearing was required.
The Petition for Rehearing is DENIED and no member of this panel nor Judge of this Administrative Unit in regular active service having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial Council Resolution of January 14, 1981), the suggestion for Rehearing En Banc is DENIED.
The judgment of the district court is AFFIRMED.
* Former Fifth Circuit Case; (Section 9(1) of Public Law 96-452-October 14, 1980).
** Honorable Edward S. Smith, Judge for the U.S. Court of Claims, sitting by designation.
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